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Showing contexts for: Structural defects in Om Prakash Bhatia vs Commissioner Of Customs on 1 December, 2000Matching Fragments
In the instant case admittedly these factual particulars have not been clearly indicated and mentioned in the shipping bill and other connected documents. In terms of Section 18 of the Foreign Exchange Regulation Act an exporter should declare the full export value of the goods that are exported. In the instant case, John Philipose, the acting Managing Director and Chairman at the relevant time appeared before the authorities pursuant to the summon issued to him under Section 108 of the Act and stated that veneers are graded according to their colour, stripes, absence of defects, thickness, length and width, and are priced on the basis of these characteristics, in addition to the cost of finished product. He has further stated that veneers having more length, width, thickness and quantity (more number of veneers in one flitch) would fetch higher price. In the context of this factual background and the statutory legal obligation cast on an exporter under the provisions of the Export Control Order and Foreign Exchange Regulation Act, besides the Customs Act, non-mention of the relevant particulars relating to the valuation of the export consignment in question would certainly be a contravention entailing confiscation. It is indeed strange that the Chairman and acting Managing Director has stated before the authority that he could not say whether the value of the consignment of rosewood veneers covered by shipping bill No. 1699 dated 22-6-84 represents "full export value of the goods". The acting Managing Director could not even say how much was the cost of slicing of the veneers in the consignment in question. Even in the statement given before the Superintendent of Customs (Intelligence) on 10-8-84, the acting Managing Director has admitted that he had not mentioned the quality of the veneers in the contract or in the other shipping documents such as shipping bill, invoice etc., notwithstanding the fact that the consignment was being exported for purposes of sale in a foreign country. The fact that the quality of rosewood veneers is determined mainly with reference to colour, structure, grains, absence of defects, thickness and other measurements, and the purposes for which they are used, does not admit of any controversy; nor is the same controverted by the appellants. Thickness of the veneers exported would be one of the surest indicators regarding the value of the same and as rightly pointed out by the Collector in the impugned order, while thickness of veneers exported is usually of two standard sizes, viz. 0.2 mm and 0.5 mm, 8 crates of veneers under seizure contain veneers of 0.5 mm thickness and the remaining 2 crates contain veneers of 0.6 mm thickness. I therefore do not find any substance in the submission of the learned counsel that there is no under-invoicing or mis-declaration of the value of the consignment for export. The plea of the appellants that there is no prohibition either under the Export Control Order or any other order and that there is no statutory definition of the item in question is hardly relevant for determination of the issue relating to under-invoicing or undervaluation within the provisions of the Customs Act, Export Control Order and Foreign Exchange Regulation Act. The ratio of the ruling in the case of Bimex International Maha Singh Gate, Am-ritsar v. Union of India and Ors. reported in 1984 (16) E.L.T. 212 (P&H) has absolutely no relevance or application to the facts of the present case. That was a case where the Punjab and Haryana High Court held that in the absence of statutory definition of rags the meaning assigned to the term "woollen rags" in the trade have to be accepted. In the present case there is no dispute or controversy that the appellants attempted to export rosewood veneers. As a matter of fact in terms of Section 13 of the Export Control Order, 1977, on the exportation from any Customs port of any goods whether liable to duty or not the owner or exporter of such goods shall in the shipping bill or other relevant documents state the value, sort, specification, quality and description of such goods to the best of his knowledge and belief and shall subscribe to a declaration to the truth of such statements at the foot of such shipping bill or other documents. The export of such goods shall be deemed to be prohibited if they are not in conformity with the declaration as per sub-clause (4) of clause 3 of the Export Control Order. The plea of the learned counsel that enquiries by the authorities of the market prices is only a conjecture cannot be countenanced. It is clearly stated in the show cause notice that on the basis of the result of market enquiries, the component opinions expressed by experienced traders and exporters in the field after personal inspection and evaluation of the consignment in question, the comparison of the prices or various export consignments of rosewood veneers of similar quality made from Cochin during the preceding few months, the comparison of the prices of rosewood veneers of comparable quality ruling in the local market and also after valuation of the consignment by the Department, the real value of the rosewood veneers under seizure was estimated at U.S. $ 2.40 per sq. mtr. The appellants notwithstanding the receipt of the show cause notice and their reply to the same, besides participation in the personal enquiry, never joined issue with the authorities with reference to the enquiries conducted by the Department, the opinion of the experts, comparative prices ruling in the market, value of export consignments of rosewood veneers of similar quality exported from the same port in the preceding few months nor did they want to avail themselves of an opportunity to cross-examine the persons connected with the sources of such information. In such circumstances it is puerile for the appellants to merely assert that the market enquiry and the reliance on the aforesaid facts and circumstances are made conjectures. As rightly pointed by the learned DR, Section 14 of the Act deals with valuation of goods for purposes of assessment and the same shall be deemed to be,