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TMI Blog1995 (2) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... hey were entitled to get back. The appellants were charged for having contravened the provisions of section 8(3) read with section 8(4) and section 60 of the Act rendering them liable to be proceeded against under section 50 of the Act. The SCN also alleged the liability of the first appellant's two Directors, viz., MM. Rajgarhia and Sudhanshu Shekhar by virtue of the provisions of section 68(1) of the Act. The adjudicating authority held that in the facts and circumstances of the case, the provisions of section 16(1) cannot be invoked. The appeals, therefore, relate to the alleged contravention of section 8(3), read with section 8(4) only. 2. Shri Mahendra Singh, the learned counsel for the appellant submitted at the outset that the impugned order is on its face untenable in law as the conclusions drawn by the learned Adjudicating Officer in his findings are contrary to law and evidence on record. He submitted that the impugned order is perverse as it is not based on any evidence and on the contrary the evidence submitted by the appellant in reply to the SCN completely disproves the charges made in the SCN. He submitted that it would cause undue hardship to the appellants if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act, are as follows :- I find from the records of the case that examination of these books by the Customs Authorities revealed that the books did not bear any price at the time of import of these books. For the purpose of effecting clearances, the respondents, though had appended the invoice with the relevant Bill of Entry, yet they had not submitted the printed price list, which could reflect the correct price of these books, I also find that a reference was made to the Indian High Commission in U.K. and the enquiries in U.K. had revealed that the book 'FAMILY KINSHIP' was out of print since 1988. The book was previously sold at 2.96 and 1.5, whereas M/s. Orient Leasing Pvt. Ltd. had imported these books at a price of 5.95. Similarly another book THE FACTS OF EVERYDAY LIFE' was out of print. When the evidence from the country of export/publishing suggests that these books are no longer in demand and have gone out of print, the only irresistable conclusion, which can be drawn by any prudent person is that these books are not in demand/obsolete. I further find that the enquiries had been made by the department from local book-sellers regarding the valuation of these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less than the prices indicated in the invoice. 7. Moreover, the learned adjudicating authority ought to have appreciated that it is for the department to establish, by appropriate evidence that the invoice value of these books was higher than their normal prices. The very fact that the department did not have, before making allegation of over invoicing, any price list, much less an authentic one, or any other evidence of correct price of these books, would show that even the initial allegation was not based on any concrete evidence from which the correct price of these books could be determined. 8. The learned Adjudicating Officer has also relied on information contained in the letter dated 18-2-1991, of Counsellor (Trade), Indian High Commission at London and another letter dated 12-1-1991 of Asstt. Collector of Customs, C.F.S., Delhi. It is to be appreciated, at the outset, that such letters would not constitute evidence to substantiate the prices of the books unless there is enclosed along with also the record disclosing that the quotations or the price list, as the case may be, had been obtained from those dealing in such books and also the quotation/price list furnished by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is evidence was not collected by the department. On the other hand both these evidence, viz., the published price list as well as quotations from two known publishers, International Book House (P.) Ltd., Bombay, UBS Publishers' Distributors Ltd., Delhi, were submitted by the appellants but the same were completely ignored. These evidence clearly show that the invoice values of these books were less than their market price. This has been made clear in the reply to SCN where it has been brought out that the CIF value of these books is the invoice value which is not more than the price printed on the books or in the published price list. In order to disprove any suspicion of over-invoicing or the allegation that the books were of no worth, the appellants had brought out, in reply to the SCN that these books were inspected by the British Ministry of Commerce and Industry who had furnished European Community Certificate of origin. It was also brought out that foreign insurance companies had provided insurance cover to these consignments. No insurance cover would have been provided had the books were of no value or were of the value less than the invoice value. 11. The learned Adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCN that the Customs Authorities had indicated that the subsequent consignment was being cleared by the appellants. It had not been the Department's case that the appellant had abandoned the consignment. In any case, as observed by us earlier, these statements ought not have been taken into consideration for determining the correct prices of these books for which direct evidence could have been obtained from the publishers. 13. The learned Adjudicating Officer found it appropriate to take into consideration the general malpractices in the import of such goods and the prevalent phenomena of over-invoicing of goods which attracted 'nil' rates of duty to siphon off foreign exchange from the country. In our opinion, this is not legally permissible. The prevalence of such practices would no doubt necessitate the concerned enforcement agencies to exercise extra care in keeping track of such imports and in making inspections thereof. But the prevalence of such malpractices by itself would not lead even the enforcement agencies to believing that each and every import, which is free of Customs duty is directed to siphon off foreign exchange. If the enforcement authorities were t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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