9911796707
TMI Blog1991 (8) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... m for abatement of duty under the provisions of Section 22 or a claim for refund under Section 27 could be legitimately entertained. Appeal dismissed. - 1661 of 1990 - - - Dated:- 13-8-1991 - S. Ranganathan, M. Fathima Beevi and N.D. Ojha, JJ. [Judgment per : Fathima Beevi, J.]. - The appellant is a federation of glass manufacturers in India. The Federation entered into a contract with M/s. Magadi Soda Company Ltd., Kenya, for supply of 5000 metric tonnes of soda ash dense at the rate of US $ 155 per metric tonne c.i.f. Bombay. The consignment arrived from Mombasa, Kenya on 23-12-1981. The goods were cleared on payment of customs duty of Rs. 32,15,904.21 from Bombay. The appellant on distribution of the goods to various members of the federation, received complaints that the soda ash which had been supplied was of sub-standard quality. The sellers M/s. Crescent Dyes Chemicals as well as their agents were approached. They sent a team of experts to examine the goods. The inspection confirmed that the goods were defective. As per agreement dated 9-2-1982, M/s. Crescent Dyes Chemicals sent a credit note of US $ 2,40,000/- as compensation on account of the defective goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted goods were defective and had deteriorated in quality even prior to the import when the assessment has to be on the basis of the real value of goods. 6. The contract dated 30-9-1981 is for the supply of 5000 metric tonnes of soda ash dense. The complaint was that the sodium carbonate content was less than the specified 97%, that there was moisture in the soda ash dense supplied and hence it had turned lumpy. M/s. Crescent Dyes Chemicals Ltd. was the agent of the seller M/s. Magadi Soda Company Ltd. The consignment arrived in Bombay sometime in December, 1981. The appellants filed their bill of entry with the customs and the goods were cleared on payment of customs duty of Rs. 32,15,904.21 on 28-12-1981. The complaint about damage and deterioration was made long after clearance. The team of experts examined the goods and confirmed the defects. The customs authorities were not associated with such inspection. 7. It is maintained by the appellant that the credit received was recorded in the letter dated 15-3-1982 and the letter indicated that the amount remitted on account of the import made was only US $ 5,35,000/-. The reduction in the amount remitted was to the extent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constitutes a breach of warranty and which the buyer elects to treat as a breach of warranty became apparent and ultimately culminated in diminution of price, it would be open to the buyer to claim refund of the customs duty paid under mistake of fact. It is not relevant as to when the defect became apparent to the buyer. The fact that the documents proving the true and real value of the goods were not in existence at the time when the goods were cleared from the customs is wholly irrelevant. This in short, is the argument advanced on behalf of the appellant. 10.Duties of customs shall be levied under Section 12 at such rate as may be specified under the Customs Tariff Act or any other law for the time being in force on goods imported into or exported from India. Section 14 of the Customs Act provides that value of such goods shall be deemed to be the price at which such or like goods are ordinarily sold or offered for sale for delivery at the time and place of importation in the course of international trade. Such price shall be calculated with reference to the rate of exchange as in force on the date on which a bill of entry is presented under Section 46. The duty is ordinaril ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration as to the truth of the contents of the bill of entry supported by the invoice. The order permitting clearance of the goods for home consumption is made on payment of the import duty, if any, assessed. 14. Thus, under the scheme of the Act, the importer is entitled to clear the goods on payment of duty assessed and such assessment is to be made with reference to the tariff value of the goods where tariff values are fixed. In other cases, the price at which the goods are ordinarily sold for delivery at the time and place of importation represents the tariff value for the purpose of the assessment. When the value is assessed on the basis of the invoice and the goods are cleared, the implication is that no remission is allowed and no abatement has been occasioned. There is no express provision which enables the proper officer to make a re-assessment for the purpose of remission on the ground that the goods at the time of their importation or at the time of the clearance was sub-standard or damaged and the invoice price does not represent the real value. Even if it is assumed that in view of the provisions contained in Section 28(a) enabling the proper officer to determine the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hown"574. to the satisfaction of the Commissioners of Customs and Excise that goods were imported in pursuance of a contract of sale and that their description, quality, state of condition was not in accordance with the contract, or that they were damaged in transit, and also that the importer, with the consent of the seller, either returned the goods to him or destroyed them unused, the importer is entitled to obtain from the Commissioners repayment of any customs duty paid on their importation. The foregoing, however, does not apply to the goods imported on approval, or on sale or return, or on other similar terms." It deals with the returning of goods or destroying the goods unused without acceptance and not where the goods have been accepted and used and the importer had been compensated for the reduction in standard. The learned counsel also referred to the decisions in Biggin Co. Ltd. v. Premanite, LD., Berry Wiggins Co. LD. - Vol. 1, KB 1951, 422, Cehave NV v. Bremer - All. E.R. 1975 (3) 739, Ford Motor Company of India v. Secretary of State for India - Vol. 65, 1937-38 Indian Appeals 32 and Vacuum Oil Co. v. Secretary of State for India - (1932) L.R. 59, IA 258. 16. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
