TMI Blog2004 (5) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... port licence. The appellants did not possess an import licence and prayed for clearance of the same by waiving the issue of Show Cause Notice. The said Para 2.33 permits import of second hand capital goods, which are less than 10 years old freely. The appellants' contention was that the item is a second hand capital goods being less than 10 years old. However, despite this fact, they were charged under Section 111(d) of Customs Act and for penal action under Section 112(a) of the Customs Act on the ground that the import is unauthorised and is liable for confiscation. The Additional Commissioner did not issue a Show Cause Notice as it had been waived, however, during the personal hearing, he relied on the Chartered Engineer's Certificate who inspected the goods and on seeing the condition of the goods had assessed the value of the imported goods as Rs. 3,55,286/- CIF as against the declared value of Rs. 2,58,390/- (CIF). He has held in the Order-in-Original that the value cannot be determined by following Rule 5, Rule 6 or Rule 7 of the Customs (Valuation) Rules and hence proceeded to determine the value under Rule 8 of the Valuation Rules by adopting the value given by the Charter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regd. …………… While reviewing an Order-in-Original passed by a Commissioner, it was observed that the said Commissioner made substantive changes in his order by issuing a corrigendum nearly 10 months after issue of the order-in-original. It was felt, prima facie, that the substantive changes brought about by the corrigendum may be beyond the scope of Section 154 of the Customs Act, 1962 and may thus not stand judicial scrutiny by the appellate authorities. 2. The Board, therefore, referred the matter to the Law Ministry and sought their opinion whether the corrigendum issued subsequent to Adjudication Order passed by the Commissioner is legally valid and tenable considering its nature and relevance to the adjudication order as well as the provisions of Section 21 of the General Clauses Act. The opinion received from the Law Ministry is reproduced below for your information and guidance. Law Ministry's Opinion Ministry of Law, Justice C.A. Department of Legal Affairs The referring Department has sought our advice whether the corrigendum issued by the Commissioner of Customs, dated 12-8-1999 to its earlier order dated 16-10-1998 is legally valid and tenable. 2. The C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the jurisdiction of the said authority or body, the other relevant circumstances....." 4. Commissioner of Customs is no doubt a quasi-judicial body required to work within the provisions of law. Neither the powers of review nor correction to the order is available under the Customs Act to the Commissioner of Customs to exercise such powers. He becomes functus officio after signing the adjudication order and, therefore, he cannot lay his hands again on the order. The corrigendum is tantamount to review of the decision which is not provided under law, and therefore, we are of the view that this impugned order is not legally sustainable notwithstanding Section 21 of the General Clauses Act". Sd/ Addl. Legal Advisor 3. The above advice of the Law Ministry may please be noted by all concerned for information, guidance and necessary action. Where any significant change in the order becomes necessary after the order has been issued which cannot be termed as clerical or arithmetical or typographical mistake, proposals for review may be mooted to appropriate authority instead of taking recourse to corrigendum. Receipt of this may please be acknowledged.' 4. Learned SDR defended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He does not give the method by which he has arrived at the value. The manufacturing cost and depreciation has not been arrived at. It merely states that "considering the present condition of the used Monitors and comparing to new Monitors of similar make, the value assessed as US $ 7,425.00 (CIF) should be reasonable, as against the invoice value US $ 5,400.00 (CIF)". The appellants had imported various models of colour monitors. The Chartered Engineer does not give specific value of each of the imported monitors to arrive at this value. The certificate itself states that the second hand goods being subjected to variable opinion, valuer or firm is not liable for any claims or damages. They only have assessed it at a reasonable price without any mention of market price or the price available for similar monitors in the market or in the international market. Therefore, the Certificate being vague, cannot be relied. 6. The Additional Commissioner has noted that the date of order as 24-3-2003, which cannot be the date of the order as the Bill of Entry is, dated 1-4-2003. The hearing has been held on 24-4-2003 before the Additional Commissioner. The Chartered Engineer's Certificate i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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