Customs, Excise and Gold Tribunal - Delhi
B.J. Singh vs Collector Of Customs on 3 August, 1989
Equivalent citations: 1990(45)ELT474(TRI-DEL)
ORDER
1. Shri B.J. Singh has filed an appeal being aggrieved from the order passed by the Collector of Customs (Appeals), Bombay. Briefly, the facts of the case are that the appellant had imported one Mercedes Benz 240 D 1984 Model Car 2398 cc vide Bill of Entry No. 820/320 dated 20th March, 1987. The same was assessed vide No. HC 973 on 3rd April, 1987. The appellant had declared the assessable value in the Bill of Entry under Section 14(1) of the Customs Act, 1962 at Rs. 1,33,522/-. The appellant had placed manufacturers Invoice No. 01/607586 dated 6th December, 1983 from M/s. Dailmer-Benz AG, West Germany and the appellant had computed the assessable value on the basis of the manufacturer's Invoice and in the manufacturer's invoice there was a diplomatic discount of 10%. The learned Assistant Collector did not allow the 10% diplomatic allowance but had allowed ad hoc depreciation at Rs. 5,000/- on account of damages. In addition to the depreciation @ 38% as per calculation sheet attached with the order in original. Being aggrieved from the aforesaid order the appellant had filed an appeal before the Collector of Customs (Appeals), Bombay. The learned Collector of Customs (Appeals), Bombay had confirmed the findings of the Assistant Collector and had rejected the appeal. Being aggrieved from the aforesaid order the appellant has come in appeal before the Tribunal. Shri N. Sogani, the learned Consultant has appeared on behalf of the appellant. At the outset of the hearing Shri Sogani, the learned Consultant stated that the appellant had filed two applications, one for the admission of additional evidence and the other application is for raising of the additional grounds of appeal. Shri Sognai, the learned Consultant stated that for the proper disposal of the appeal the additional evidence filed by the appellant is very essential otherwise the appellant shall suffer an irreparable loss and the appellant could not get this additional evidence earlier. He stated that the appellant were prevented by sufficient cause for not filing additional evidence earlier and as such the same may be admitted. On the raising of the additional grounds of appeal Shri Sogani, the learned Consultant stated that the additional evidence is a letter dated 8th February, 1988 addressed by Dailmer Benz AG, manufacturer of Mercedes-Benz Car to the Consulate General of India, Frankfurt and the price of the same has been shown as German Marks 25,650/- inclusive of 14% Sales Tax and the same in English translation is also attached. He pleaded that the raising of additional grounds of appeal may be allowed. The additional grounds are B to F which was not raised before the lower authorities. Shri Sogani further stated that the application for raising additional ground of appeal as well as permission of the admission of additional evidences are duly supported with affidavits.
2. Shri A.S.R. Nair, the learned SDR who has appeared on behalf of the respondent opposed the admission of additional evidence as well as additional grounds of appeal. However, he fairly stated that there are no counter-affidavits from the respondents.
3. We take the first Misc. Application for grant of permission for the admission of additional evidence. The document in question is a certificate dated 8-2-1988 written by Dailmer Benz AG, Frankfurt to the Consulate General of India, India House, Frankfurt in German language with an English translation duly certified by M.V. Kotnis, Assistant Foreign Language Advisor, Cabinet Secretariat, Government of India, New Delhi. Both the applications are duly supported with affidavit, sworn before the Oath Commissioner, High Court, New Delhi. There are no counter-affidavits from the respondent. We do not doubt the bonafide of the appellant. Accordingly, we allow both the Misc. Applications viz. the application for permission for the admission of additional grounds as well as additional grounds of appeal. On merits Shri Sogani, the learned Consultant has cited 5 judgments of the Tribunal as under :-
(1) Dr. R.N. Azad v. Collector of Customs, New Delhi - Order No. 430/1988-A, dated 9-8-1988.
(2) Shri Bhagwati Prasad v. Collector of Customs, New Delhi - Order No. 519/1988-A, dated 24-10-1988.
(3) Collector of Central Excise, Bangalore v. Smt. Shashikala S. Shetty - Order No. 15/1989-A, dated 19-12-1988.
(4) Shri N.K. Chawla v. Collector of Customs, Bombay - Order No. 269/1988-A, dated 9-5-1988.
(5) Shri Y.P. Dutta v. Collector of Customs, Madras - Order No. 2/1989-A, dated 29-12-1988.
4. Shri Sogani, the learned Consultant has referred to the provisions of Section 14(l)(a) of the Customs Act, 1962 and has stated that the 15% trade discount should be allowed from the world catalogue price in view of the earlier judgments of the Tribunal. Shri Sogani further pleaded that in case 15% trade discount is allowed he does not press for the 10% diplomatic allowance. He has pleaded for the acceptance of the appeal. Shri A.S.R. Nair, the learned SDR who has appeared on behalf of the respondent stated that trade discount is a fresh ground of appeal and the appellant is expanding his claim of refund. The claim is hit by Section 27 of the Customs Act, 1962. Diplomatic Discount is a special discount which is not admissible in terms of provisions of Section 14(1) (a) of the Customs Act, 1962. The price in the present matter has been fixed on the basic of invoice and the challenge of invoice is improper and the price adopted by Revenue is very fair. He has pleaded for the rejection of the appeal.
5. We have heard both the sides and have gone through the facts and circumstances of the case. The facts are not disputed. The appellant had imported Mercedes Car from West German. It is a settled law that the value has to be taken in terms of provisions of Section 14(l)(a) of the Customs Act, 1962. Section 14(l)(a) of the Customs Act, 1962 is reproduced below :-
"the price at which such or like goods are ordinarily sold, or offered for sale, for delivery at the time and place of importation or exportation, as the case may be, in the course of international trade, where the seller and the buyer have no interest in the business of each other and the price is the sole consideration for the sale or offer for sale :
[Provided that 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, or a shipping bill or bill of export, as the case may be, is presented under Section'50]"
6. The appellant had declared the value in invoice at 27,228.10 DM. The price of the car was 29,941.30 DM and had claimed 10% discount for diplomat. The additional evidence filed by the appellant admitted by the Tribunal at German Marks 25,650/-inclusive of 14% Sales Tax. The Tribunal has taken a constant view that the value of the car has to be assessed on the basis of world car catalogue price of the same model less 15% discount. In the present matter we have permitted the additional evidence. The genuineness of the same has not been doubted by the respondent but still the revenue authorities have not gone through the same. In the case of Dr. Prem Kumar v. Collector of Customs, Bombay in Appeal No. C/526/85-B2 Order No. 2/89-B2 dated 6th January, 1989 the Tribunal had taken the similar view. Para No. 3 from the said judgment is reproduced below :-
"The appellant contended before us that the invoice price was not a discounted price. The learned Representative of the Department manitained, on the basis of his experience in the Customs department, that the invoice price to the export passengers (like the present appellant) was a discounted price. He, therefore, opposed the grant of any further discount to the appellant. However, he had no objection to the car being assessed at the manufacturer's net price to whole-sale dealers in the course of international trade. But there could be no further 15% discount on the already net wholesale price. 15% discount was given on the retailers' list price.
We have had the benefit of experience of dealing with a large number of cases of valuation and assessment of imported cars. It is well within our knowledge that the general practice of the Customs department is to base the valuation on the World Car Catalogue Price and give 15% discount thereon. The idea is to get at the price at which the like goods are ordinarily sold in wholesale in the course of international trade, as required by Section 14(l)(a) of the Customs Act, 1962. Resort is had to the individual invoice prices of the passengers only if the world car catalogue price of the model is not available. We order that the same basis should be followed in the case of the present appellant also and his car re-assessed on the basis of the World Car Catalogue Price or the same model less 15% discount. On our asking, the appellant was not in a position to show us the World Car Catalogue Price but he maintained that the said price was available with the Custom House. In case the World Car Catalogue Price is not available with the Custom House, the customs may ascertain the manufacturer's net price to wholesale dealers in the course of international trade in any other manner. If this course is also not feasible, the assessment may be maintained at the appellant's invoice price. There is no question of granting the 15% discount on the individual export passenger's invoice price."
7. The learned SDR had raised an objection that the provisions of Section 27 are mandatory and raising of this plea at this stage will amount to the enlargement of the refund claim. We would like to observe in the matter before us. There was no refund claim before the lower authorities. The appellant had challenged the order passed by the Assistant Collector and the same was confirmed by the Collector (Appeals) and the same is now before us. Whatever may be the order, the consequential effect has to be given to the order so passed. Accordingly, we are of the view that provisions of Section 27 of the Customs Act, 1962 are not applicable in this case because there is no refund application from the appellant. In view of our above discussion we order that the car should be re-assessed on the basis of the World Car Catalogue Price of the same model less 15% trade discount. During the course of arguments Shri Sogani, the learned Consultant had argued that he does not press his plea for higher depreciation. Accordingly, we are not passing any order on the same. Accordingly, we direct the lower authorities to give consequential effect to this order. In the result the appeal is partly allowed.