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TMI Blog1992 (8) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... no basis or material available with Customs Authorities to enhance the value of the goods. The learned Single Judge passed an interim order directing release of the goods upon the appellant's furnishing a bank guarantee for 50% of the disputed customs duty and a personal bond for balance of the disputed duty. Pursuant to the said order, a bank guarantee of Rs. 15,66,005/- representing 50% of the total disputed duty of customs was furnished by the appellant on 29th June, 1987. The appellant also furnished a bond in terms of the said order. 4. Before the appellant could take delivery of the said goods, the Special Investigation Branch of the Customs House issued instructions to the West Bengal State Warehousing Corporation, Paharpur where the goods were kept, not to deliver the goods to the appellant without the permission of the Special Investigation Department. The appellant then moved another writ application in this Court for release of the goods and also for a direction that the warehousing charges were to be borne by the Customs Authorities. This was rejected by B.L. Jain, J. Against that order, an appeal was preferred in this Court. 5. While the matter was pending in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a to pass an assessment order after giving reasonable opportunity to the appellant of being heard and after furnishing the appellant with all documents. 8. Pursuant to the aforesaid order, the Collector of Customs handed over to the appellant certain documents, and the appellant also furnished copies of certain documents to the Collector of Customs in support of their respective cases. 9. On 3rd November, 1989, the Collector of Customs, Calcutta passed an order of assessment purporting to hold that the value of the goods imported by the appellant was Rs. 3,995/- per metric ton equivalent to US $ 320 per metric ton. The appellant was aggrieved by the aforesaid order dated 3rd November, 1989 and urged several grounds for assailing the same. In that view of the matter, this Court gave liberty by an order dated 6th December, 1989, to the appellant to file a supplementary affidavit challenging the said order of the Collector of Customs. 10. After perusing the order of the Collector of Customs dated 3rd November, 1989, in the context of the supplementary affidavit filed by the appellant affirmed in January, 1990 coupled with letter dated 25th October, 1989 written by M/s. Biswanath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... price shown in Serial Nos. 2 and 3. In respect of Serial Nos. 4 and 5, the importations were made at US $ 150 and US $ 149 F.O.B. respectively, which works out to approximately US Dollar 211 per metric ton C.I.F., Calcutta. The contention of the Collector of Customs that in these cases the Customs Department loaded the value to US $ 320 and since the goods were cleared at that value, the valuation of the said goods should also be cleared at that rate, cannot be accepted as sufficient for the Department to discharge the onus cast upon them to prove under-invoicing. 13. It is a settled law that the onus of proving mis-declaration regarding the price mentioned in the Bill of Entry is on the Department and this onus can be discharged only on proving of proper fact which would discredit the price mentioned in the Bill of Entry and not on the basis of mere suspicion and surmises. It is also a settled law that if there is no sufficient evidence to establish the charge of under-valuation and the Department is not in a position to produce sufficient evidence to show that identical or similar goods have been ordinarily sold or offered for sale or delivery at the time and place and at a pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Rules and the Collector of Customs cannot act bypass in the said Rules. Even if it is assumed that in some cases the demand of the Department had been made by some importers by allowing their goods to be loaded that is no ground for asserting that the appellant has also under-valued the goods. The contention of the Collector of Customs that even after assessment of the goods at the enhanced value of the US $ 320 per metric ton, the appellant would gain sufficiently by selling the products in local market and that justifies a higher assessment, is an argument which is absurd. No tax can be assessed or levied without due authority of law. The gain or loss of an importer has no relevance as rightly contended on behalf of the appellant that if the argument of the Collector of Customs is to be accepted then the Government would have to accept lower value for the purpose of assessment if due to certain circumstances the local market falls and the importer makes a loss. 16. Having regard to the facts and circumstances of this case and having regard to the nature of the disputes raised as to the valuation, we are of the view that the matter should be remanded to the Collector once ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dira Vikas Patra for Rs. 40 lakhs and by way of security with the Registrar, Original Side. The appellant is, therefore, directed to deposit Indira Vikas Patra of the value of Rs. 8 lakhs with the Collector of Customs which shall be retained by him and adjusted, if necessary, against the duty payable by the appellant upon assessment of duty. 19. So far as the West Bengal State Warehousing Corporation is concerned, a fixed deposit receipt of Rs. 10 lakhs has already been deposited with the Registrar, Original Side, pursuant to the order of this Court, A sum of Rs. 5 lakhs would be receivable or had already been received by the West Bengal State Warehousing Corporation from the Insurance company. Therefore, a further sum of Rs. 8 lakhs has to be secured by the appellant against the claim of the West Bengal State Warehousing Corporation. We, therefore, direct that Indira Vikas Patra of Rs. 8 lakhs now lying with the Registrar, Original Side, shall be retained by him. In other words, the fixed deposit receipt of Rs. 10 lakhs and Indira Vikas Patra of Rs. 8 lakhs shall be retained by the Registrar, Original Side, till 30th November, 1992. If within the time specified above, the West B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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