Customs, Excise and Gold Tribunal - Delhi
Minafax Electronic Systems (P) Ltd. vs Collector Of Customs on 25 May, 1992
Equivalent citations: 1992(62)ELT770(TRI-DEL)
ORDER S.V. Maruthi, Member (J)
1. This appeal arises out of an Order of the Collector, dated 31-10-1990 enhancing the value of goods imported by the appellants and confiscating the same under Section 111(m) and also under Section 111(1). The Collector gave option to redeem the goods on payment of fine of Rs. 2,25,000/-. He imposed a penalty of Rs. 1,00,000/-. The facts in brief are as follows :-
2. The appellants imported by air one consignment of components for manufacture of Mini Computer Micro Processor Based Systems consisting of plastic moulded and press metal parts. They filed Bill of Entry on 10-1-1987. They declared the value at Rs. 22,007/- C.I.F. The goods were imported in pursuance of offer dated 15-11-1987. Accordingly, the appellants placed 3 purchase orders one dated 6-11-1987 for components and two dated 29-11-1987 for computer spares with the foreign suppliers. Alongwith bill of entry the appellants filed the Invoice No. 10024, dated 6-1-1988. On examination of the goods, it was found that the consignment contained excess quantity of different goods not covered by the order placed by the appellants. Therefore, they have contacted the foreign suppliers who by their telex dated 8-2-1988 confirmed that on account of mistake in their packing department the goods were wrongly issued. In respect of the excess goods, the appellants submitted supplementary invoice bearing number 10024A and 10024B, dated 1-2-1988 and 12-3-1988 sent by the foreign suppliers. However, the department proposed to confiscate the goods under Section 111 and proposed to impose penalty under Section 112 on the ground that there is a mis-declaration of value and proposed to assess the goods at Rs. 2,38,560/- relying on the prices given in "Bytes" magazine issue of January, 1988. It is also alleged that there is mis-declaration of quantity and unauthorised import of the goods without cover of valid licence since only goods worth Rs. 13,050/- were permissible under the Open General Licence and remaining goods were either falling under Appendix 2-B or 3 (Part-A) of AM, 1985-88 Policy Book. The appellants were given personal hearing. The Collector passed an Order enhancing the value of goods to Rs. 2,38,5607- and imposed a penalty of Rs. 2 lakhs. The goods were confiscated. However, the appellants were given option to redeem the goods on payment of Rs. 2 lakhs. The appellants challenged the order of the Collector before this Tribunal on the ground that the evidence relied upon for enhancing the value was not furnished. This Tribunal by its Order set aside the Order of the Collector and remanded the appeal to the Collector for de novo adjudication. The Collector during the course of De Novo adjudication furnished the relevant documents on which they have relied on for enhancing the value and after hearing the appellants passed the impugned Order. Hence the appeal before us.
3. The main ground of Shri Nankani challenging the Order of the Collector is that while enhancing the value, the Collector relied upon "Bytes Catalogue" which does not reflect the price at which such or like goods are ordinarily sold or offered for sale under Section 14 of the Customs Act. In the absence of any other evidence the invoice price should be accepted. He also pointed out that the goods were made in Taiwan whereas the 'Bytes' catalogue gives the price of goods of USA origin. Secondly, the goods under dispute are unbranded whereas some of the items listed in the "Bytes Catalogue" are branded. Therefore, the price mentioned in "Bytes Catalogue" is uncomparable for determining the assessable value.
4. As regards the excess quantity of goods, he submitted that in view of para 116(3) of the AM, 1985-88 Policy Book import is claimed on the basis of Chartered Accountant certificate dated 8-2-1988 and ought to have been considered which the Collector has not considered.
5. Shri Prabhat Kumar, JDR appearing for the Department submitted that "Byte catalogue" is a McGraw-Hill Publication and therefore, it is unauthenticated one and the Collector has not accepted the prices indicated in the said catalogue but on the basis of those prices assessed the goods by applying the principle of best judgment assessment. He also pointed out that the catalogue gives international prices of goods sold during the course of international trade. Therefore, these prices are reliable and relevant for the purpose of determining the assessment value. As regards the excess quantity imported, he pointed out that the Collector has not passed any speaking order.
6. The question, therefore, is that whether the value of goods imported can be enhanced on the basis of prices mentioned in the "Byte catalogue" or not. This catalogue is a McGraw Hill publication. From a reading of the catalogue it appears that it is being available for sale in United States, Canada and UK. It also indicates that it deals with data based software and it reviews prices of the display T 310020 etc. In other words, it deals with prices of goods either made in Japan or in USA or UK or with the brand name of goods of Japan origin. Admittedly, the goods imported are manufactured in Taiwan. Therefore, the price indicated in "Byte Catalogue" cannot be treated as comparable price for the purpose of making assessment. For instance, under the heading 'Leisure Printers' the model indicated is that of USA. Therefore, no comparison of prices can be made from the prices indicated in the said catalogue with the goods under dispute. Therefore, we reject the prices indicated in "Byte Catalogue" as comparable prices. The appellants themselves filed an invoice indicating the prices of goods imported from Taiwan. The invoice is dated 27-3-1988. It is an import made by CMS Computer Pvt. Ltd., Bombay. Bill of Entry No. is A-3551/l(i), dated 4-4-1988. The price indicated is FOB Taiwan US dollars 220 for Motherboard-Baby AT and 240 US dollars for Motherboard-AT. Therefore, the price declared by the appellants, cannot be said to be under-valued. We, therefore, accept the invoice price as there is no other evidence of imports at higher prices.
7. As regards the excess quantity of import the Collector has not dealt with the issue in the light of Chartered Engineer's certificate and also in the light of para 116(3) of the Import and Export Policy. Inapplicability of para 116(3) of Policy found by the Collector on the basis of distinction between components and spares is not prima fade tenable. We, therefore, direct the Collector to examine the issue in the light of the other condition mentioned in para 116(3) of the Policy. The appeal is allowed and remanded as indicated above.