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TMI Blog1984 (8) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... -83 Import Policy, as per the requirement of the OGL, a certificate was furnished by the foreign supplier giving specifications of the two machines and certifying that the machines were not more than 10 years old and had expected residual life of 10-12 years at the time of importation. A home consumption bill of entry was filed by the appellants showing therein the c.i.f. value of ₹ 2,64,534. The Custom House did not accept the valuation of the goods and also questioned the importation being valid in term of the OGL. However, issue of show cause notice was waived at the appellants request as they were anxious to take early delivery of the goods. After affording the appellants an opportunity of personal hearing, which was attended by Shri Rakesh Bagai, a partner of the appellants firm, the Collector vide his order dated 16-1-1984 adjudicated the case. After examination of certain evidence with regard to another importation of like goods made sometime earlier, the Collector held that the appellants had under-valued the goods. He directed that the declared value of ₹ 2,64,534 be enhanced to ₹ 8 lakhs. He further held that the goods in question had been imported in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... machines imported by the appellants and the one imported by M/s. Sachdeva, the machines of the appellants were valued at ₹ 4 lakhs each. The learned Collector had, while adopting this basis ignored some vital facts, namely :- (a) M/s. Sachdeva had imported the machine from England whereas the machines imported by the appellants had been shipped from Sweden. (b) M/s. Sachdeva s machine was imported in June, 1983 whereas the appellants machines had been imported in November, 1983. (c) It was on record that the machine imported by M/s. Sachdeva had undergone substantial re-conditioning (abroad) and the expenses of such re-conditioning were stated to be 50% or so of the total value of the machine. On the other hand, in the appellants case, as per the certificate of inspection furnished by the foreign supplier, the total cost of re-conditioning the two machines came to ₹ 13,300. (d) As per the Chartered Engineer s certificate, the residual life of the machine imported by M/s. Sachdeva was shown as 10/15 years; the corresponding residual life of the machines imported by the appellants was certified to be 10/12 years. (e) With regard to second-hand machinery, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the appellants to the relief prayed for, namely, that their declared value should be accepted for assessment purposes. 5. Shri A.K. Jain, the learned S.D.R. submitted that there was no force in the various contentions made by the learned counsel for the appellants and that the Collector had fixed the valuation of the goods in a manner which was quite fair and reasonable. 6. We have given very careful consideration to the submissions made by Shri Narasimhan and the stand taken by the learned S.D.R. We see a lot of force in the grounds urged by the learned counsel for the appellants. We have had occasion to deal with a number of appeals where the charge of under-invoicing was in dispute. Some of these cases have been referred to by Shri Narasimhan. The burden of proving the charge of under-invoicing lies squarely on the Department. It is an unquestionable proposition of Law. Before discarding the valuation declared by a party, it is incumbent on the part of the lower authorities to take pains in making detailed enquiries, collect material and after such effort has gone into and adequate evidence is available on record, only then it is open to the lower authorities to enhance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the shipment was made under the subsequent Policy provided a firm contract for the import of the goods had been entered up to 28-2-1983 and the shipment was effected up to 31-3-1984. In the appellants case a firm contract had been effected by virtue of the letter of credit dated 28-2-1983 and the shipment of the goods had been made in August, 1983 i.e. well before the stipulated date in the said saving clause viz. 31-3-1984. Shri Narasimhan pointed out that the learned Collector had not given due thought to these provisions although he seemed to be aware of them. This was evident from what was stated in paragraph 11 of the order. It will appear that the Collector had not treated the letter of credit dated 28-2-1983 as an irrevocable commitment on the part of the appellants. In this connection Shri Narasimhan invited our attention to order No. 113/84-A passed by this Bench while disposing of Appeal No. CD(SB) 92/82-A. He pointed out that in paragraph 13 of the said order, we had held that opening of an irrevocable letter of credit constitutes entering into a firm commitment in the scheme of ITC Regulations. Shri Narasimhan also submitted that this had been the established practi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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