Customs, Excise and Gold Tribunal - Delhi
Punjab Niryat Ayat Pvt. Ltd. vs Collector Of Customs on 19 June, 1991
Equivalent citations: 1991ECR533(TRI.-DELHI), 1992(58)ELT340(TRI-DEL)
ORDER S.V. Maruthi, Member (J)
1. This is an appeal against the order of the Addl. Collector enhancing the value of 5 TOSHIBA FAX Machines model TF 211 from Rs. 59,287/- to Rs. 1,20,074/-.
2. The appellants imported the impugned goods of Japanese origin from Hongkong on behalf of five licences under letters of authority issued by them. They filed a Bill of Entry No. 001045 dated 4-10-1990. While so, a show cause notice was issued on 29-10-1990 alleging misdeclaration of the country of origin on the ground that they declared in the B/E Hongkong as the country of origin whereas the country of origin actually is Japan. It is also alleged that the appellants have under-invoiced the value of goods. This allegation is based on a contemporary Invoice No. I/S2 dated 23-3-1990 for Hongkong dollars 8880 FOB. On receipt of reply, the Addl. Collector enhanced the value against which the appellants have come up in appeal before us.
3. Shri Asthana appearing for the appellants submitted that the declared value is US $ 645.00 (C & F) enhanced value is HK $ 8800 (FOB). The actual difference is Rs. 45,000/- and not Rs. 60,707/- as alleged. He also submitted that under the appellants' invoice No. TE(P) 126/90 dated 10-9-1990 only bare machines were imported whereas the invoice dated 23-3-1990 on which the Addl. Collector relied upon imported one Facsimile machine Model TF 211 with all necessary accessories. He also submitted that the B/E of the invoice dated 23-3-1990 has not been furnished to the appellants. Further, the invoice under which the appellants imported the goods is dated 4-10-1990 whereas the invoice of the so-called identical goods is dated 23-3-1990. The said invoice relates to M/s. Mash Leather. M/s. Mash Leathers, who are the importers, are consumers, while the appellants is a regular importer of FAX machines for customers and therefore, they are posted with necessary knowledge of correct sources and correct prices of the impugned goods. He also submitted that the imports of the appellants are of 5 machines whereas the imports of M/s. Mash is only of one machine alongwith accessories. He also brought to our notice an offer dated 6-11-1990 whereby Yard Brave Trading Co. Ltd. offering TF 211 at HK $ 5000 [Unit price FOB Hongkong]. He also relied upon an offer of TOSHIBA Data Dynamics Pvt. Ltd. TE-211, Singapore 1150, provided an order is made at least for 100 machines for each model FOB Singapore Dollars. He also contended that the Assistant Collector has not given any reasons for not accepting the transaction value. He also submitted that the Addl. Collector appears to have relied upon Rule 5 of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 and the said rule, according to him, is not applicable as there is difference in the time of import and quality of goods and also, the commercial level. In other words, the so-called identical import of M/s. Mash Leather is by an actual user whereas the appellant is a regular importer. Therefore, Rule 5 is not applicable. He submitted that since the transaction value is genuine and since Rule 5 is not applicable and since there is no other evidence, the transaction value should be accepted.
4. Shri Satish Kumar reiterated the order of the Collector.
5. The Collector while enhancing the assessable value appears to have relied upon Rule 5 of the Rules which reads as follows:
Rule 5. Transaction value of identical goods. - (1) (a) Subject to the provisions of Rule 3 of these rules, the value of imported goods shall be the transaction value of identical goods sold for export to India and imported at or about the same time as the goods being valued.
(b) In applying this rule, the transaction value of identical goods in a sale at the same commercial level and in substantially the same quantity as the goods being valued shall be used to determine the value of imported goods;
Clause (c), (2) & (3) are not relevant here.
From a reading of Rule 5, it is clear that the value of imported goods shall be the transaction value of identical goods sold for export to India and imported at or about the same time as the goods being valued.
6. In the instant case, the appellants' invoice is dated 29-10-1990 whereas the invoice on which the Addl. Collector relied upon namely, the invoice of M/s. Mash Leather is dated 23-3-1990. A comparison of the two invoices shows that there is a gap of 7 months 6 days between the imports of M/s. Mash Leather and the impugned imports. Therefore, the invoice dated 23-3-1990 cannot be treated as an 'import at or about the same time' as the impugned imports. Therefore, the invoice dated 23-3-1990 ceases to be an invoice of identical goods within the meaning of Rule 5. Secondly, the impugned imports are of 5 in quantity without accessories, whereas the invoice dated 23-3-1990 relates to one machine with accessories. Therefore, it is not substantially in the same quantity. Thirdly, the appellants being regular importers and M/s. Mash Leather being a consumer, both the importers cannot be treated at the same commercial level. In view of the above, the criteria laid down in Rule 5 is not satisfied on the facts and circumstances of this case. Therefore, the Collector is not justified in enhancing the assessable value. Since no other evidence is brought on record to doubt the correctness of the transaction value, there is no other alternative except to accept the transaction value.
7. As regards the misdeclaration of country of origin, it has been categorically stated by the appellants that by mistake they have mentioned the country of origin as Hongkong and they have corrected the same on pointing out. Therefore, the question of misdeclaration does not arise.
In view of the foregoing, the appeal is allowed and the order of the Collector is set aside.