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TMI Blog1986 (12) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was less than half for two types of bearings while for the other two types it was lower by 12 to 20 percent. The authorities noticed that all other importers had imported the said bearings at the listed prices only. Two earlier importations by the appellants themselves were also at the listed prices. Since under Section 14(1)(a) of the Customs Act, 1962, assessment had to be made at the price at which the goods were ordinarily sold or offered for sale, and not at the invoice value obtained by any particular importer, the authorities did not find the declared values acceptable. The appellants explained that the value difference in respect of one particular type of bearing (type M, 4109 L) was due to the concession gained by them on accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclared value to the level of the sale price ordinarily available, they could not just for that reason impose fine or penalty. For the latter, positive evidence showing mens rea on the part of the importer, such as bogus invoice or evidence of extra payment, was necessary. (2) All that the importer was required to declare in the bill of entry was the invoice value contracted by him for purchase of the goods. Upon the bill of entry being presented, it was the function of the Customs Officer to determine the deemed value ordinarily charged for the goods in terms of Section 14(1)(a). The importer was not required to declare the said deemed value. (3) It is not in dispute that in order to interpret a particular provision and to infer t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they could not be precluded from taking the ground of violation of principles of natural justice before the Tribunal even though they had not taken this ground before the first appellate forum-the Board. 4. We have heard the learned representative of the department and given the matter our earnest consideration. There could be no quarrel with the abstract proposition that the burden of proof required in penalty proceedings is much higher than in mere assessment disputes. But that does not mean that the evidence can be or has to be fool proof or beyond reasonable doubt. The degree of evidence required in departmental penalty proceedings had been laid down by the Supreme Court in 1983 E.L.T. 1546 (S.C.) Collector of Customs Madras v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct case it could be shown that a published list price of the goods was available, that the importers in general were importing the said goods at that listed price and that one particular importer declared on importation a price which was more than 100% lowers than the listed price, there would indeed appear to be a very heavy onue shifted to that importer to explain how he got such a low price. Whil-minor variations would not call for imposition of fine and penalty, a differ rence of more than 100% would appear to show the motive of the importe-of which the authoritities would be justified in taking a due notice. Under invoicing and over-invoicing in the course of international trade are, like other present day white collar economic offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in relation to any goods, means the value thereof determined in accordance with the provisions of Sub-section (1) of Section 14. When the Bill of Entry or the declaration appended thereto or Section 111(m) speak of value it has to be the value as defined in the Act and not the invoice price if such price is different from the value (the price ordinarily charged). There is no point in asking the importer to declare only the invoice price because the invoice is even otherwise required to be annexed to the Bill of Entry under Section 46(4) of the Customs Act and Customs Assessing Officer could ascertain the invoice price from the invoice itself. Therefore, when the Bill of Entry prescribed a separate column for declaration of value, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the appellants related to the period prior to 1973 when the un-amended Section 111(m) was applicable. Whether the words material particular in the un-amended section included value or not was the point of dispute before the Supreme Court. Looking to the subsequent amendment of 1973 which specifically inserted value in Section 111(m) and the Objects and Reasons stated in the Bill in relation to the amending clause and the proposition that a penalty clause had to be strictly construed, the Supreme Court held that the words material particular in the un-amended provision did not include value. In the case of the appellants, we are concerned with the amended Section 111(m) which is clear enough in its meaning, content and scope. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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