Customs, Excise and Gold Tribunal - Mumbai
Bhatia Films Sale (P) Ltd. vs Cc on 3 July, 1998
Equivalent citations: 1998(79)ECR870(TRI.-MUMBAI)
ORDER K. Sankararaman, Member (T)
1. The appeal is directed against order in original dated 7.12.1990 passed by Additional Collector of Customs, Bombay confiscating a consignment of what was declared as camera parts by the appellant which was imported from Hong Kong but giving an option for their redemption on payment of fine of Rs. three lakhs in lieu of confiscation in addition to imposing penalty of Rs. 50,000/-. The said action was taken on the ground that from the goods imported, complete camera could be assembled with the help of just screws and as such the import was hit by entry No. 172 of Appendix 2B of the Import Trade Control Policy for 1990-93. The value of the goods was also held to have been misdeclared and the rate of US $ 9 per piece shown in the invoice was increased to US $ 15.8 per piece on the basis of prices mentioned in price list of another supplier of Hong-Kong submitted by the appellant. On this basis the declared value of Rs. 1,94,472/- for the imported consignment was enhanced to Rs. 3,34,278/-.
2. Learned Counsel for the appellant, Shri Hari Om Arora stated that the appellant is a Small Scale industrial unit and had imported the goods in question which are parts of camera and not complete cameras in knocked down condition. The import was covered by OGL. Regarding valuation, cost analysis data had been submitted by them. There is value addition on account of labour also. The department had erred in taking the value of entire camera. He relied upon the Tribunal decision in S.K. Electronics v. Commissioner of Customs, Mumbai 1998 (68) ELT 668 in support of his argument.
3. The contentions were resisted by Shri M. Ali, Learned Departmental Representative. He stated that the description given by the appellant in the Bill of Entry was camera parts. Details were not given. The goods were examined and found to be ready to assemble kits of cameras. Even Screws and accessories had been imported. All these together constitute complete camera. Such import is not permissible and only Parts required as Spares can be imported. The entry in Appendix 2B will prevail over that in 3A of the relevant Import Trade Policy and hence the import was unauthorised. The goods had been misdeclared by the appellant in the import documents. In such a case of misdeclaration, the value is also not acceptable. He relied upon the following decisions.
Bombay Bag Factory v. Collector of Customs Timpati Granites (P) Ltd. v. Collector of Customs, Kandla .
Shri M. Ali pointed out that the department had gone by the material provided by the appellant company itself for the value adopted. The claim made by them on the strength of the supplier's letter dated 23.11.1990 had been rightly rejected by the adjudicating authority as the price shown in that letter related to camera with lens of 5.6 power whereas the imported camera was different and more powerful and efficient with lens power 3.8. Learned Counsel gave a rejoinder that the import was made in a bona fide manner and they had filed a. single Bill of Entry along with all the three invoices concerning the entire consignment.
4. We have considered the submissions. We have perused the record. We find that appellant had entered the description of the goods imported as camera parts. The goods were covered in three invoices and imported in 29 cartons. The description in the three separate invoices were Shutter System for 35 Still Amateur Camera (Model Sport 505) which were covered in two invoices consisting of 400 pieces and 807 pieces. The rate being US Dollars 7.00 per piece C&F Bombay. The third invoice covered "Main Camera Body Parts for 35 MM Still Camera (Model Sport 505)". The number of pieces supplied were 1230 pieces. The finding by the adjudicating authority is that the goods imported when assembled together will form complete cameras, the import of which is not permissible. In the order, the relevant entry viz. 568 Appendix 3 of the Import Trade Control Policy has been extracted as follows:
568. Components of camera (other than video camera and cinematographic camera), the following:
i) Main body/case back cover.
ii) Shutter system.
iii) View finder.
iv) Film transport system.
v) Range finder.
On examination, the goods imported were found to be complete cameras in six parts.
a) Top cover
b) Bottom cover
c) Front cover
d) Shutter System
e) Screws
f) Parts and Accessories, Spare flash bulbs and transistors.
The shutter system was an assembly of shutter system, view finder, flash lens of 3.8 mm. Film Transport System, back cover and low light indicator. All the goods imported were held to be complete Camera in knocked down condition capable of being assembled just by using screws. Import of cameras was held to be hit by entry No. 172 of Appendix 2B of the Import Policy which read as follows:
All consumer goods, howsoever described, of industrial, agricultural or animal origin, not appearing individually in Appendices 3 Part A and 5 or specifically listed for import under Open General Licence.
5. The adjudicating authority has found that what appellant had imported were cameras having the following specifications, Film size 35 mm, lens F 3.8 Auto wind Auto rewind, Built in Flash and low light warning indicator. The prices of Cameras of similar specifications of a Hong Kong supplier were seen by the Adjudicating authority to be ranging from US $ 15.8 to 16.8 per piece as per the price list of a Hong Kong supplier Tokina Co. Ltd. produced by the appellant. Issue of show cause notice was waived at the instance of the appellant who however submitted explanations vide letter dated 25.10.1990 and also appeared for personal hearing before the Adjudicating authority. A letter dated 25.11.1990 from the manufacturer was also submitted before the adjudicating authority in support of the declared price. The latter found that the specifications of the Camera covered in the said letter were different the lens being 5.6 and 3.5 in the imported goods. We find that the rejection by the Additional Collector of the appellant's plea that what had been imported were shutter systems and not complete cameras is correct. Appellant had imported the entire camera body including flash, low light warning indicator, lens etc. in the garb of shutter system. The finding in the impugned order that the imported goods were complete camera in ready to assemble condition and hence consumer goods hit by entry 172 of Appendix 2B of the import policy April-March 1990-93 is correct. The valuation adopted is based on the price list of M/s. Tokina Co. Ltd., Hong Kong submitted by the appellant company itself before the adjudicating authority. He has adopted the lower price of US $ 15.8 shown in that lot. We see no justification for revising the value adopted in the impugned order. We however, find that the fine in lieu of confiscation fixed at Rs. 3 lakhs calls for reduction as also the penalty. Hence, while upholding the confiscation, we reduce the fine in lieu of confiscation to Rs. 1 lakh and the penalty to Rs. 25,000/-. The impugned order is modified to this extent but is upheld otherwise. The appeal is partly allowed.