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TMI Blog1960 (7) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... toms House, Calcutta, a copy whereof is annexed to the petition at p. 10. In that notice it was stated that upon examination of the sample drawn from the consignment imported by the company ex s. s. Nankai Maru from Penang, of split betel nuts, and after comparing them with the value of comparable qualities of the goods imported during the period of despatch and cleared through the Customs House, and on the basis of overseas market reports during the approximate time, it was found that the real value of the goods was at the rate of ₹ 55. 77 nP. per picul c.i.f. Calcutta, whereas it has been declared in the relative documents by the company as ₹ 26.50 nP. per picul c.i.f. Calcutta. Therefore, the goods were undervalued to the extent of ₹ 1840.76 nP. As a result of this misdeclaration of value, the company was directed to show cause why the goods should not be confiscated and a penalty imposed under Section 167, Clause (37) of the Sea Customs Act. The company was further requested to produce a valid import license for the correct value of the goods, failing which, it was required to show cause under Section 167(8) of the Sea Customs Act read with Section 3(2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause. In the reply that was given dated 10th November, 1959, the position taken up was that a show-cause notice had already been issued and explanation had been given and a hearing had taken place. After that, a second notice was not. permissible. Beyond that, the company refused to show cause up to the merits. I might mention here that upon the second show-cause notice having been issued, the company had in the first instance merely asked for a month's time on the 26th October, 1959. On the 3rd November, 1959, notice was again issued, offering to hear the matter on the 26th November, 1959 but as stated above, the company objected to any further hearing. On the 1st December, 1959 an order was passed by the Assistant Collector of Appraisement, a copy whereof is annexed to the petition and marked as Ex. B. In that order, it was stated that on examination of representative samples drawn from the consignment imported by the company from Malaya, and on comparing the value of the goods with that of goods of like kind and qualify imported at the Port at or about the same time and cleared through the Customs House, and on the basis of the overseas market report of the relevant pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case it is the time when the order was placed. 2. The order of confiscation of the whole goods itself is Contrary to law. (para 23 (j) of the petition). 3. The Customs Authorities meted out unequal treatment to the petitioners in valuing the goods at a much higher rate than other goods contained in the same shipment. (para 23 (f) and (g) of the petition). 4. The second notice could not be issued inasmuch as cause has already been shown to the first notice. The issue of the second notice was mala fide and capricious. (Para 23 (h) and (o) of the petition). 4. The learned Standing Counsel appearing on behalf of the respondents has taken a preliminary objection which is as follows: He argues that before the Tribunal of first instance, the company took only one point, namely, that the real value should be calculated on the basis of the value which was prevalent in Penang, Malaya on or about the date of the making of the contract, that is to say, 28th July, 1959 and that it was not the fault of the company that its suppliers delayed supply for reasons of heavy rain and shipping difficulties. As I have already pointed out, no other objection was taken in the explanation that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ows; For the purposes of this Act the real value shall be deemed to be -- (a) the 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 or exportation as the case may be, without any abatement or deduction what-ever, except (in the case of goods imported) of the amount of the duties payable on the importation thereof; or (b) where such price is not ascertainable, the cost at which goods of the like kind and quality could be delivered at such place without any abatement or deduction except as aforesaid . 5. It is this 'real value', which the owner has to declare in the bill of entry or shipping bill under section 29 of the said Act. The question is as to what is the 'time of importation'. Upon this point, a Bombay decision has been cited, Ford Motor Co. of India Ltd. v. Secy. of State. It was held by Beaumont C. J. that the word 'time' in 'at the time and place of importation' does not refer to the precise moment of time at which the goods are unloaded from the ship. There must be a reasonable time allowed in which the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be on an ad valorem basis. In my opinion that is not a correct proposition. It is true that the real value must be calculated as defined in section 30, but the statement in the order that in this case the assessment was not being made under Section 30, S. C. Act on an ad valorem basis is perfectly correct. According to the tariff schedule, split betal nuts imported from Penang, Malaya, are assessed according to weight and not on an ad valorem basis. That is what has been indicated in the order. There is no intention of stating that the value is to be determined on any principle otherwise than as laid down in section 30, 6. Next, Mr. Das argues that if section 30 is to be in the picture, then it is apparent that the provisions thereof have not been followed. He says that the matter can only come under Clause (a) of Section 30, and the calculation has obviously been made in violation of the provisions thereof. He argues that no mention is to be found in the order about the wholesale cash price or the trade discount, nor is there any determination as to the wholesale cash price less trade discount for which goods of the like kind and quality are sold or are capable of being sold a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in market values which are published by the Customs authorities themselves. It appears that other importers imported betel nuts from Penang and their values, according to the petitioner, are not identical. I fail to see how it could be so. There is nothing to show that the quality of those goods were the same, and with regard to different consignments of goods of different qualities the values must necessarily vary. In any event, I do not see how the constitutional safeguard of discrimination at all arises. So far as the law is concerned, it has not been established that any discrimination is contemplated. In my opinion, this point is of no substance. 9. Lastly, with reference to point No. 4 viz., that a second notice could not be issued inasmuch as there was already a first notice to which cause had already been shown, in my opinion, this point is also of not any substance. The explanation why a second show cause notice was issued is perfectly satisfactory. On the face of the first notice, there appears to have occurred several errors. The company itself pointed out that it had purchased goods at ₹ 26.50 per Cwt. and not per picul as mentioned in the said notice. The fact ..... 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