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TMI Blog1937 (11) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... (Mr. Gordon Edward Corey), the only witness called at the hearing of the suit, was as follows : "Our orders are placed normally once a month. That order covers our requirements for one month-two or three months following our order. After they [Ford (Canada)] receive the order they must build the car and a month is required for passage time. We sell to the dealers all over India, Burma and Ceylon." 2. The appellants issue from time to time a price list, and the terms of business are that the retail price to be charged by the distributor to the public is that stated in the price list current at the time of arrival of the vehicles in India, and the price payable by the distributor to the appellants is the same price less a discount of 20 per cent. The distributor has to pay this price before obtaining delivery. Delivery is given by the appellants "free on rail", save in the case of the authorized dealers for the district of Bombay itself, viz. Ford Automobiles (India), Limited to whom delivery is made at their own warehouse in Bombay. The price mentioned in the price list is in all cases for a vehicle in running order and the same is true of the contract between the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y overpaid and for certain declarations the correct basis of assessment. The learned trial Judge, Tyabji J. held (21st January, 1935) that the motor cars were in the circumstances assessable under Clause (a) of Section 30, but that duty was only payable upon the basis of the appellants' price to the distributors, provided that deductions therefrom were made so as to reduce it to an "ex ship" price. With this object he reduced the figure by making two deductions - (a) for the cost of a carriage from the dock to the place of delivery and (h) for the appellants' overhead charges in respect of the assembling of the cars after importation. The parties agreed that upon the view taken by the learned Judge the amount of customs duty overpaid was Rs. 454.90. Upon appeal by both parties to a Division Bench, it was held that the assessment made by the Customs authorities was correct and the appellant's suit was dismissed with costs (4th October, 1935). 3. On behalf of the appellants stress has been laid upon certain features of their business. They have from the first insisted that Ford cars are in a class by themselves and cannot be regarded as of the like kind and quality as other car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. 4. These are formidable contentions and they must be tested by the language of the statute. It is reasonably plain in limine that if such a wholesale price as satisfies the description contained in Clause (a) of Section 30 is ascertainable the goods cannot be dealt with under Clause (b) and the statute is not consistent with the view that the importer's profits should in that case be excluded from the assessable value. The price to be ascertained is "a wholesale cash price less trade discount for which goods of the like kind and quality are sold or are capable of being sold at the time and place of importation." In the application of Section 30 to the facts of a given case, something may depend upon the exact force attributed to the requirement that the price must be "ascertainable". The word imports more than could be satisfied by the result of a mere estimate. On the other hand the language of the section - "or are capable of being sold" - does not exclude all possibility of arriving at the price defined by Clause (a) upon the basis of an actual price, though some adjustment may be needed to eliminate the difference, e.g. between cash and a month's credit. 5. If t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable ground for holding that the sales in the present case were not within the terms of Clause (a). That the Legislature intended to exclude post-importation expenses need not be doubted but it had to do this in a practicable manner without undue refinement and it must be taken to have regarded the phrase which it employed as sufficient for the purpose if taken in a reasonable sense. 6. The fact that the motor cars were incompletely assembled at the time of their arrival in Bombay gives rise to no difficulty, because although the car, according to the price lists, had to be in running order, the allowance in respect of this defect was an agreed allowance, and reduced the sum payable by the distributor to a price referable to the car in the condition in which it arrived in Bombay. The allowance was deducted by the customs authorities from the price to the distributors before arriving at the price upon which duty was calculated. The trial Judge thought it necessary to set on foot calculations as to the appellants' overhead expenses in respect of assembling, but in their Lordships' view this has no bearing upon any matter arising under Clause (a) of Section 30 and the Division ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicable for want of sales of other goods. The clause can be applied distributively to each of the motor cars in this consignment and even if they are regarded collectively the clause is not defeated. A particular car may be sold at a price which, having regard to other transactions in such cars or to other circumstances, is too high or too low. In that sense the actual price in a particular instance does not necessarily or finally establish a wholesale price to satisfy Clause (a) whether the particular car or cars sold be part of the shipment in question or not. But the goods under assessment may under Clause (a) be considered as members of their own class even although at the time and place of importation there are no other members. The price obtained for them may correctly represent the price obtainable for goods of the like kind and quality at the time and place of importation. 8. In the present case a number of sales have been made to different distributors in the ordinary course of an extensive importing business. It is difficult to think that the appellants' practice to find out their distributors' requirements in advance, and to place monthly orders with the manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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