TMI Blog1991 (5) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal set aside the order of the Collector and remanded the matter to the Addl. Collector with the following observations : We, therefore, without going into the merits set aside the impugned order and remand the matter to the Collector of Customs, Delhi with the following directions :- (i) The appellants should file written submissions before the Collector including their pleas on various invoices etc. including copies etc. wherever possible. Shri Asthana undertakes to do this by 7th November, 1990. (ii) The Collector should thereafter fix a date of hearing as soon as it is possible for him. (iii) Considering that the goods are under detention and are incurring demurrage of nearly Rs. 2000/- a day, fresh orders should be passed within three weeks from the date of receipt of written submissions. (iv) The Collector of Customs may adjudicate this matter or he may entrust it to any competent officer other than the original adjudicating officer as the said authority, is said to have associated himself with the investigation. 4. In pursuance of the above order, the Addl. Collector heard the appellants and furnished the material on which the Department relied upon and pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there is no substantial change in the prices of the commodity between 1989-90. Therefore, the invoice dated 24-5-1989 is a relevant piece of evidence, and the Addl. Collector ought to have relied upon the same. He also referred to a letter dated 5-6-1990 which relates to an offer made by M/s. Bhalla Co. offering to the appellants LFC-32 size 8" at 1159 Japanese Yen per hundred pieces. In the letter, they also indicated goods worth Japanese Yen 6,00,000 for shipment. M/s. Bhalla Co. are the agents of M/s. YKK Zippers (S) Pvt. Ltd. The appellants also filed a invoice dated 24-5-1989 indicating the price of M/s. YKK Zippers (S) Pvt. Ltd at 1159 Yen. 9. The contention of Shri Asthana is that the Collector ignores all the above material produced before him indicating the price of M/s. YKK Zippers (S) Pvt. Ltd. and adopted the price of M/s. Durga Enterprises which is in violation of Rule 5 of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988. He submitted that Rule 5 of the Rules provides for the transaction value of identical goods. According to sub-rule (3) of Rule 5 in applying Rule 5 if more than one transaction value of identical goods is found th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the order of the Collector is in accordance with the rules and requires to be confirmed? 11. The question under the above circumstances is what should be assessable value of the goods. The Collector enhanced the value from 119 to Rs. 156 per hundred pieces relying on the imports made by M/s. Durga Enterprises and also on the imports said to have been made by M/s. Diamond Enterprises under invoice No. VC/25/90 VC/24/90 dated 20-6-1990. At the outset, we may point out that the copies of invoice No. VC/24/90 and VC/25/90 dated 20-6-1990 were not furnished to the appellants. Therefore, the Collector is not justified in placing reliance on these two invoices. Shri Prabhat Kumar also submitted that these invoices may be ignored. The next document relates to the imports of M/s. Durga Enterprises. M/s. Durga Enterprises imported two consignments each consisting of 3 lakh pieces of MKK zippers under two invoices viz., invoice No. VC/18/90 dated 11th June, 1990 and the relevant Bill of Entry is dated 15th June, 1990 and the invoice No. VC/21/90 dated 14th June, 1990 and the corresponding B/E is dated 15th June, 1990. The Collector on the basis of the letter dated 11th Jun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Determination of Price of Imported Goods) Rules, 1988 which provides for the transaction value of identical goods. According to which, in applying Rule 5, 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. The conditions for applying Rule 5(1)(b) is that sale should be at the same commercial level and the quantity should be substantially the same. As pointed earlier, the impugned imports are from Singapore though the goods are of Japanese origin whereas the imports of M/s. Durga Enterprises are from Hong Kong. Therefore, it cannot be said that the sale is at the same commercial level. Secondly, the quantity of M/s. Durga Enterprises is 3 lakh pieces whereas the appellants imports are for 4,10,000/- pieces. Therefore, it cannot be said that the quantity is substantially the same. Hence, Rule 5(1)(b) is not applicable. 14. The findings of the Collector that the letter dated 11-6-1990 is a mistake is based on no evidence as no material is produced before us in support of the same. We are therefore, of the view that the imports of M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is an under-valuation to the extent indicated above, the appellants are liable to pay the difference in duty on the enhanced value. We also direct the appellants to redeem the goods on payment of a redemption fine of Rs. 25,000/-. 17. The contention of the appellants that under Rule 5(3) of the rules, if more than one transaction value of identical goods is found, the lowest such value shall be used to determine the value of imported goods need not be considered in the light of the view which we are expressing namely, that the uniform contemporary price of identical goods is available. 18. As regards the penalty, we set aside the order of the Collector. The appellants have been penalised sufficiently. For non-compliance with principles of natural justice, the appellants have to approach this Tribunal and the appeal was allowed and remanded to the Collector. This is the second round of litigation. In view of the fact that the appellants have to face litigation twice, we do not propose to impose penalty. 19. The Collector is directed to assess the goods at 1159 Japanese Yen and the appellants may be given an option to redeem the goods on payment of a redemption fine of Rs. 25, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
