Customs, Excise and Gold Tribunal - Delhi
Laxmi Colour Lab vs Collector Of Customs on 21 July, 1992
Equivalent citations: 1992(62)ELT613(TRI-DEL)
ORDER S.V. Maruthi, Member (J)
1. The dispute relates to the valuation of colour printing machine with standard accessories and automatic film developing and processing machine with micro processors based system with standard accessories.
2. The appellants imported a consignment consisting of one set of colour film printing machine with standard accessories and one set of automatic film developing and processing machine with micro processor based system with standard accessories. They declared the value at Rs. 2,78,792 under bill of entry dated 8-8-1984. The appellants claimed clearance of goods under OGL. They claimed assessment under the Customs Act under heading No. 84.66. The appellant firm is solely owned by Shri Gordhan B. Dandwani, who is a non-resident Indian residing abroad. He has decided to start his own industrial unit and that the industrial unit is registered with local State Government authority as SSI unit. He was maintaining his non-resident external account No. 640 with the Central Bank of India. He brought foreign currency equivalent to Indian Rs. 2,89,382.75. He made the payment for the imported goods by drawing the money from his N.R.I. account to the local account. He issued a cheque to Export House. The Additional Collector accepted the claim of the appellants for import under OGL 21/83. As regards the valuation he enhanced the same relying on a telex dated 27-9-1983 under which M/s. Noritsu Koko Co. offered to M/s. Dave Bros. Bombay identical goods at the rate of Japanese Yen 13802931 F.O.B. equivalent to Rs. 6,34,325/-. He confiscated the goods and gave option to redeem the same on payment of Rs. 35,000/- as fine against which the present appeal is filed.
The main contention of Shri Nankani appearing for the appellants is that the telex message quoted in the price is only an offer and cannot be treated as price for the purpose of Section 14(1)(a) of the Customs Act. He pointed out that the telex refers to Model No. 501D-009B whereas the appellant imported Model No. 501-D. Two models namely 501-D and 501-D-009B arc different in operation and function and the goods in question i.e. Model 501 -D consists of (a) QSF-601-L-S Film Processor; (b) QP-3504K Printer; (c) QAP-1400 Paper Processor; and (d) QC-3500-2 Print Cutter. The constituents of complete model 501-D-009B have not been shown or recorded in the telex. Therefore, there cannot be any comparison between the goods referred to in the telex and the goods imported. As regards the finding of the Collector that the appellants have accepted the price mentioned in invoice, he brought to our notice two letters dated 2-8-1984 and 1-8-1984 wherein they stated that "However, in order to expedite the earlier clearance and to save demurrage charges which have already been incurred very heavily, we are not insisting at this stage for the inspection of the documents likely to be relied upon by the Department. We take it the copies of the same will be furnished to us even after the adjudication for the purposes of any action which my client deem fit to see thereafter." In the letter dated 1-8-1984, it is mentioned "My client also understands that the Custom House has proposed the enhancement of the value declared by him in the Bill of Entry. My client has not been given any reasons for such proposed enhancement of the value declared in the Bill of Entry. My client says and submits that there are various types of similar such equipments, which are being exported by Japan. The prices of each type vary and no comparison can be made unless prices of such identical imports or in the records in the Custom House at the relevant time of importation. As far as my client is concerned, he has not made any extra remittance besidses what has been shown as the price in the invoice. It is submitted that these proposed enhancement is a distinct and separate issue not connected with the acceptance of the licence and for which, a separate assessment order will be issued by the proper officer, so that my client can approach the Collector of Customs (Appeals) to the redressment of this grievance." In view of the above two letters Shri Nankani submitted that the finding of the Collector that the appellants have accepted the escalation of value with grace is contrary to the facts on record.
3. Shri Singhal, learned JDR appearing for the department vehemently contended that the model mentioned in the telex dated 26-9-1983 is identical to the goods imported. He also pointed out that it is art offer made to Mr. Dave Bros and therefore, the price quoted is relevant for the purpose of determining the assessable value.
4. The question, therefore, is whether there is any justification for enhancing the value of goods relied on the telex message.
5. The perusal of the telex message indicates that it refers to QSS-501-D complete [Ref. No. Q-(R)-501-D-009B] and the price quoted in the telex is 13,80,2931 Japan Yen. It is not clear whether the item quoted in the telex message is similar to the imported goods as there is no technical material stating that 501-D-009B is similar to QSS 501D. Further, there is no evidence that the goods were actually imported in pursuance of the offer in this telex message. The impugned goods were imported in January, 1984 whereas the telex relates to September 19, 1983, and there are no contemporary imports upto January, 1984 the date of actual import. In our view, the telex message cannot be relied upon for the purpose of enhancing the value of goods imported not only because the model is different but also there is a difference of 4 months between telex message and the impugned goods. We may also point out that there is no evidence of actual import of goods in pursuance of the said telex message. Telex message is only a quotation and in the absence of actual imports In pursuance of quotation, it is in the nature of an offer. In the absence of concluded contracts and actual imports in pursuance of telex quotation no reliance can be placed. Therefore, we reject the telex quotation as the basis for enhancement of value.
6. As regards the finding of the Collector that the appellants have accepted the escalation of value, the letters dated 1st and 2nd August 1984 i.e. well before the impugned orders were passed. However, there is no proof that these letters were actually sent to the Collector.
7. In the absence of any endorsement by the Collector that they were received in the office of Collector they cannot be relied upon. However, even assuming that there is acceptance, it does not preclude the appellant from challenging the same by way of appeal as there cannot be estoppel against law. In other words, if according to law viz. under Section 14(1) the assessable value is the price at which the goods are ordinarily sold in the course of international trade, then that price alone should be the basis for assessable value. In absence of contemporary imports at higher price the invoice value should be accepted. Therefore, mere acceptance of escalated price does not preclude them from challenging the same on the ground that assessable value should be in accordance with Section 14(1) of the Customs Act, 1962. We have already held that telex message cannot be relied upon as evidence of a contemporary import at higher price. Therefore, the appellants are not precluded from challenging the assessable value. We may also refer to judgment of Supreme Court in Dunlop India Ltd. and Ors. v. Union of India and Ors. reported in AIR 1977 Supreme Court 597 wherein it was held :-
"There is no estoppel in law against a party in taxation matter. If a party, in order to clear the goods for customs, has given the classification in accordance with the wishes of the authorities or even under some misapprehension, and if the law allows it a right to ask for refund on proper appraisement and which is actually applied for the party cannot be estopped from making such application and ask for such refund."
8. In view of the above, we are of the view that the appellants are not precluded from challenging the valuation made in the Order of the Collector.
9. We, accordingly, allow the appeal and set aside the order of the Collector.