TMI Blog1986 (12) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... he listed prices only. Two earlier importations by the appellants themselves were also at the listed prices. Since under Section 14(1)(a) of the Customs Act, 1962, assessment had to be made at the price at which the goods were ordinarily sold or offered for sale, and not at the invoice value obtained by any particular importer, the authorities did not find the declared values acceptable. The appellants explained that the value difference in respect of one particular type of bearing (type M 4109 L) was due to the concession gained by them on account of production of the said type being discontinued and they having purchased the entire left over stock. On investigation, the authorities found that neither the production of type M 4109 L was discontinued nor there was any evidence of the appellants having lifted the entire left over stock. Besides, some excess goods were also found in the consignment which the appellants attributed to packing errors at the supplier s end. On adjudication, the Collector enhanced the value of the goods to the level of the listed prices. Further, on the charge of misdeclaration under Section 111(m) of the Customs Act, which the Collector held as establish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l did not consider it fit to allow the appeal in full or any or all the above three grounds, the matter may be remanded to the Collector for re-adjudication since he had, inter alia, relied on the evidence of other importations (including two of the appellants themselves) in the listed prices without putting the said evidence to the appellants in the show cause notice and hearing them thereon. The appellants stated that they had asked for evidence of actual importations at listed prices in reply to the show cause notice. They were not supplied with the said evidence. But the Collector brought the said evidence abruptly in his order-in-original and used it against them. They added that they could not be precluded from taking the ground of violation of principles of natural justice before the Tribunal even though they had not taken this ground before the first appellate forum - the Board. 4. We have heard the learned Representative of the department and given the matter our earnest consideration. There could be no quarrel with the abstract proposition that the burden of proof required in penalty proceedings in much higher than in mere assessment disputes. But that does not mean tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue notice. Under-invoicing and over-invoicing in the course of international trade are, like other present day white collar economic offences, sophisticated jobs. One does not get at direct and positive evidence like bogus invoices or documents relating to extra remittances just for the asking. Such evidence becomes available only rarely and that too when raids and searches are conducted on receipt of specific information. It is neither possible nor desirable to organise raids and searches in every case where the declared price is found to be appreciably low, particularly when other independent evidence, such as the published catalogue price coupled with the price actually charged in previous similar importations, can be adduced. The final conclusion, of course must rest on the peculiar facts and circumstances of each case. We, therefore, do not accept the appellants first proposition that just because no bogus invoice or other evidence of extra remittance had been discovered in their case, confiscation and penalty proceedings cannot be initiated against them. 5. The format of the bill of entry required to be filed by the importers under Section 46 of the Customs Act has been st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrel with the proposition that the statement of Objects and Reasons annexed to the Bill is relevant to resolve any ambiguity noticed in the provision. But we find no such ambiguity in the amended provision of section 111(m). The Supreme Court judgment in the case of M/s. Rib Tapes cited by the appellants related to the period prior to 1973 when the unamended Section 111(m) was applicable. Whether the words material particular in the unamended section included value or not was the point of dispute before the Supreme Court. Looking to the subsequent amendment of 1973 which specifically inserted value in Section 111(m) and the Objects and Reasons stated in the Bill in relation to the amending clause and the proposition that a penalty clause had to be strictly construed, the Supreme Court held that the words material particular in the unamended provision did not include value. In the case of the appellants, we are concerned with the amended Section 111(m) which is clear enough in its meaning, content and scope. There is, therefore, no need to look behind the provision. The amended section makes misdeclaration of value, whether upward or downward, punishable with confiscation of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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