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S.S. Sekhon, Member (Judicial)

1. The appellants imported one IBM 5360 (system-36 computer), one IBM Printer, one IBM Matrix Printer, and 23 Display units which were supplied by M/s. Mega K. Co., USA and were shipped from Netherland. The invoice value was f.o.b. US Dollars 78700/- and actual freight and insurance as applicable, the c.i.f. value declared was Rs. 10,00,857/-, Bill of entry was filed on 26.10.1985 at Air Cargo Complex, Mumbai for the clearance of above said system.

2. The goods were examined twice, first when the Customs officer in the Import Cargo Shed had conducted the mandatory examination and second time by an expert from M/s. CMC Ltd., the Government of India undertaking and following two objections were raised-

"Reopended on Carton from Package No. 1

Reopended on Carton from Package No. 3, 4, & 5.

IBM 5256 Matrix Printer appears to be old IBM 5360 System's Carton bears the marks B 24 marked in Ink.

P Kgs. kept open for inspection by Gr. A.6 and AC/III pl."

On a perusal of the said imports even from the photocopies it is found there is force in the appellant's submission that this has been written in different ink and the examination has been conducted by the officers other than Assistant Collector. Therefore, the submission that the initial examination report dated 17.03.1986 "appears to be old" in the report on IMB 5256 Matrix Printer and 'on carton B-24' against the report regarding IBM 5360 System - 36 which are in the nature of interpolations, cay be clearly observed by the facts placed in the file, therefore plea being made of bias in the examination and with tampering with the report has to be upheld. Therefore the Collector's finding in this regard as also his findings on M/s. CMC Ltd. Report, cannot be upheld especially when importers request for the re-examination was not permitted by the Collector. The burden of proving "old and used" was on the department and that ha snot been discharged.