9911796707
TMI Blog1988 (6) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... on of principles of natural justice by the adjudicating Collector saying that their imported consignment had been under detention for the last 4 years and 6 months and they did not want a remand of the matter to the Collector for re-adjudication. 4. We have heard both sides at length and have carefully considered their submissions and the record. The goods involved in the controversy are alloy steel pipes (stainless steel pipes) shipped from South Korea by M/s. Sammi Corporation. The old name of this supplier company was M/s. Sammissa Co. Ltd. till 1.6.1982. The goods arrived in India around 10.2.1984. About two years earlier, w.e.f. 13.2.1982 to be exact, the rates of customs duties on stainless steel pipes had been steeply increased to more than double. Even before the consignments imported by the appellants landed in India, they filed writ petitions in Calcutta High Court and pleading promissory estoppel on the ground that their purchase orders were of 11.2.1982, two days earlier than the date of the increase in customs duties on 13.2.1982, obtained interim orders from the Hon'ble High Court to assess the goods at the old rate of customs duties on the declared values; the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SKU/SC/82-83, dated 11.2.1982 of M/s. Esskay Udyog, Cachar, Assam on M/s. Sammi Corporation, Seoul, Korea for supply of the similar goods @ U.S. $ 3,400 per M.T. (7) Order No. GEW/10/83-84 (unsigned), dated 8.7.1983 from Globe Engineering Works to M/s. Sammissa Co. Ltd. for supply of similar goods @ U.S. $ 3,400 per M.T. CIF Calcutta. In this document, the Order No. "83-84" has been encircled and the figures "82-83" have been written above it in ink. Similarly, the date "08.07.1983" has been encircled and the date "11.2.1982" has been written in ink. Also the unit rate "U.S. $ 3,400" has been struck out with a pen and the figure "1050" written above it in ink. (8) Three copies of the above order corrected/modified and re-typed as indicated above (one original and two carbon copies), all signed by the proprietor, Globe Engineering Works. (9) Documents similar to those at 7 & 8 above in the name of the other two appellants. (10) Letters of the three appellants to Dena Bank and the Bank's letter/cable to M/s. Sammissa Co. Ltd./Bank of America, Seoul, Korea to amend the Marine Insurance Policy so as to cover 110% of invoiced value instead of 300%/200% as originally stated. (11) Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shambhu Saran Mishra, in the same statement dated 7.3.1984 given to the Customs and Central Excise officers of Assam, deposed that he started his factory in 1982 but that the factory had not been working for the last 9-10 months. The total value of the goods sold by him was stated to be approx. Rs. 3.5 lakhs. He stated that he did not have any records of the goods manufactured and sold. Thus, he gave a picture of M/s. Mishra Enterprises as a very modest firm and defunct for the last 9-10 months. Yet, from the vouchers/documents seized from the premises of M/s. Metal & Alloys Industries it was found that an amount of Rs. 1.13 crore was deposited in Dena Bank A/c. by Mishra Enterprises during the period from 23.9.1983 to 9.2.1984. These facts lent credence to the belief that someone else was the real operating force behind the names of the three appellant firms. 8. In the course of their enquiries, the authorities issued repeated summons to the proprietors of the appellant firms but none of them responded. During the hearing before the adjudicating Collector, the counsels, who appeared on behalf of the appellants, were directed by the Collector specifically to present the three prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rices, the one sent through official channel to the Bank showing the price @ U.S. $ 3,400 per M.T. and the other sent direct to the appellants showing the price at U.S. $ 1,050 per M.T. We are told by the appellants that the foreign supplier was a concern of repute having annual turnover of millions of dollars. Well, if such a big international company of repute was not expected to do this sort of double dealing, the only other possibility was that the appellants themselves created the second set of invoices which they filed with the customs with the bill of entry. Other discoveries strengthened the belief that this is really what happened. Comparison of the two sets of invoices even by a layman was enough to indicate that they had been prepared by two different typewriters and in two different inks. The Bank invoices were in blue ink while the invoices presented by the appellants to customs were in black ink. The supplier's signatures on the invoices filed with the customs were also found to differ considerably from the supplier's signatures on the packing list, on the certificate of origin and on the import invoice as recovered from the Bank. The Bank stamp found on the attested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est letter dated 10.2.1984 to the Bank. The Bank stated that this letter was not available in their file. The Bank also denied having received it or having entered into any correspondence with the Korean supplier over the price issue. It is strange that on 10.2.1984 the appellants, as per their own version, were aware of the higher invoice price charged by the foreign supplier and yet they declared a lower price in the bill of entry and filed with the Customs some invoices at that lower price on 10.2.1984. It is obvious that they had no respect for the statutory declarations which they were required to make under the Customs Act, 1962. 12. The appellants invited our attention to M/s. Sammi Corporation's telex dated 3.3.1984 to Dena Bank to the effect that Sammi Corpn. had by mistake, ignored the old contract note. They also told us that on 16.5.1984 M/s. Sammi Corpn. remitted the price difference to Dena Bank. We also find from the impugned order that on 4.6.1984 Dena Bank asked M/s. Sammi Corpn. to send all signed invoices and refund, if any, only through the Bank of America, Seoul, Korea. M/s. Sammi Corpn. did not do so and on 21.6.1984 again sent the invoices and refund order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of charge order dated 28.2.1984 was to file an appeal before the Collector (Appeals) under Section 129 D(2). The adjudicating Collector had no jurisdiction to revise the out of charge order passed under Section 47. II. The onus to prove under-valuation was on the department. The department had adduced no independent evidence of what was the ordinary international price of the goods. The appellants produced before the Collector a summary of about 15 earlier releases of similar goods at the lower price of about US $ 1,050 per MT but the Collector did not comment on it at all in his order-in-original. III. The show cause notice had alleged violation of Section 111 (d) of the Customs Act also on the ground of import licence being not valid. In his adjudication order, the Collector dropped the charge of import control violation but yet, while passing the final order of confiscation, he mentioned Section 111 (d) also alongwith Section 111 (m). This showed that the Collector's mind was conditioned by two violations while determining the amount of fine and penalty. Secondly, market price of the goods was not mentioned in the order. Third, there was no basis for confiscation and penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders as far back as in February 1982. We have discussed in the earlier paragraphs that this was a case of ante-dating the orders. No sales confirmation of these orders was produced by the appellants before the authorities nor was any such confirmation found during search of the premises of M/s. Metal & Alloys Industries, though other numerous documents were found. During the hearing before us, the appellants have placed in the paper book a copy of the sales note dated 27.2.1982 of the foreign supplier. In the background of this case we are not prepared to accept this document as genuine. Our conclusion is also based on the fact that no time limit was stated in the sales note for opening the confirmed letter of credit. It is not the international trade practice to give a sales confirmation/acceptance valid for an indefinite period. Finally, we also find that among the documents seized from the premises of M/s. Metal & Alloys Industries, there was a blank signed sales note of M/s. Sammissa Co. Ltd., Korea also. Well, it seems that the appellants had enough tools of trade available to produce any documentary evidence. 17. So far as the onus is concerned, after the Customs authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X
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