9911796707
TMI Blog1999 (12) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... the contents of the affidavit and all other relevant material documents available on record in the form of typed set of papers. I have also taken into consideration the various points raised by the learned counsel appearing for the respective parties during the course of their arguments. 4. In the above facts and circumstances of the case, the only point that arises for consideration in this case is, as to whether there are any valid grounds to allow this writ petition or not. 5. The brief facts of the case of the petitioner, as seen from the affidavit are as follows : The petitioners company carries on business in importing Life Saving Equipment and they have imported "KOSAN ANGLE" BRAND FOLEY BALLOON (15,000 pcs) Catheters silicone treated sterile double pack of the CIF value Rs. 2,41,611/- equipment to U.S.$ 9000. The said Foley Balloon Catheter is a kind of suction catheter which finds place at S.No. 32 of Notification No. 208/81 as amended from time to time There was a dispute whether Foley Balloon Catheters would form part of the suction catheters. This was ultimately resolved by the judgment of the Tribunal in the case reported in 1987 (27) E.L.T. 706 and subsequently in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seller and the buyer have no interest in the business of each other and the price is the sole consideration for the sale. Here, there is no dispute about the price paid. The buyer and seller have no interest in the business of each other and the price is the sole consideration for the transaction. 6It is stated by the petitioner that Sec.. 14(1A) states that subject to the provisions of sub-section (1) the price referred to in that sub-section in respect of imported goods shall be determined in accordance with the rules made in this behalf. In exercise of the power conferred by Section 156 of the Customs Act, the Central Government enacted the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988. Under Rule 3, the value of the imported goods shall be the transaction value. Under Rule 4, the transaction value of the imported goods shall be the price actually paid which means the invoice value. Under the proviso to Sec. 14, the 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. Thereafter, in the budget on 29-2-92 several radical changes were made with regard to making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Exchange Rate for the dollar in respect of Life Saving Drugs and Equipments and that the Reserve Bank of India's circular, namely, LERMS clearly specified that the foreign exchange will be available at the official rate in respect of Imports for the Life Saving Drugs and Equipments. When that is the case, they cannot have another rate for arriving at the price. The Act does not say that the exchange rate should be the market rate for all imports. This would be an arbitrary and capricious exercise of power. According to the petitioner, when the Government has decided that the foreign exchange should be made available at the official rate for the import of Life Saving Drugs and Equipments, it would be arbitrary and capricious on the part of the Customs Authorities to state that while calculating the value, they could adopt some other rate for conversion of the Dollar, when that is not the rate at which the price was paid. The assessment that has been made on the Bill of Entry in so far as it relates to the increase of the valuation from Rs. 26.84 to Rs. 29.28 per U.S Dollar adopting the Customs Exchange Rate is void and of no effect and great hardship and loss would be cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s paid, and that therefore the assessment that has been made on the Bill of entry in so far as it relates to the increase of the valuation from Rs. 26.84 to Rs. 29.28 per U.S. Dollar adopting the Customs Exchange Rate is void. It is vehemently argued by the learned counsel appearing for the petitioner that the action of the Customs Authorities is without jurisdiction, as the price at which the goods were imported should be the criterion for the levy of duty, that the price should be calculated at the rate of exchange which has been actually paid by the Importer and not on the market rate on which the Customs Exchange Rate was presumably based, and that there cannot be one price for imports and another price for calculation of duty. Inter alia it is also contended by the petitioners that the Customs Authorities have misconstrued the true scope of Section 14(1), the proviso and Section 14(1A) of the Customs Act. They also contended that they have also misconceived the scope of the Customs Valuation Rules, 1988 and according to them the duty is leviable on the price paid, and that they cannot adopt an artificial price for the levy of duty. According to them the section and the rules a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s strictly in accordance with the relevant section and there is no deviation at all as alleged and contended by the petitioner herein. 9.However, in support of their contention the learned counsel for the petitioner relies on the decision reported in E.L.T. Vol. 112 Part 3 (A156) wherein it has been stated as follows : "The Supreme Court on 20-8-1999 ruled that the Customs Authorities, for the purpose of valuation of imported goods, could not notify a different exchange rate for foreign currency, that varies with the Reserve Bank of India rates, without giving adequate reasons." The above decision is not helpful to the petitioner herein. Because, they want the official rate on the date of import should be taken into consideration and not the Exchange rate (market rate on the date of the filing of Bill of Entry. The above decision never says that the exchange rate prevailed on the date of filing Bill of Entry should not be taken into consideration for fixing the price. Therefore the above decision is not in any way helpful the case of the petitioner. 10.Therefore for all the aforesaid reasons and in the facts and circumstances of the case and also in view of my above discuss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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