TMI Blog1988 (11) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... stic materials such as LDPE the licences will also be valid for import of Self Adhesive Tape as packing material upto 1% of the value earmarked for import of packing materials or Rs. 500/- whichever is higher, within the overall value of which packing materials can be imported against the relevant REP licence." 2. The goods, being insulated tapes, were not considered as Self Adhesive Tapes as packing material. The value of the goods was also not found acceptable by the lower authority and value of the goods of another import of tapes bearing No. 33945 was sought to be adopted first but later the lower authority compared the price of the goods to another brand bearing description Wonder supplied by Asia Chemical and the price of these goods and revised the value of the imported goods from .042 $ per roll to .066 per roll. The goods have been confiscated by the lower authorities for the reason of these being not covered by the licences produced as also for the element of under-valuation involved and have been allowed release on payment of fine of Rs. 2,75,000 and a penalty of Rs. 15,000/- also imposed. 3. The learned advocate for the appellants pleaded that it was not in disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Entry bearing No. I-1539 dated 2nd May, 1986. He pleaded that in that case, the goods imported were also PVC insulated tapes. He pleaded that, obviously, a test case has been made out in the case of appellants and the appellants have been selected for special treatment. 5. Regarding valuation, he pleaded that the value of the appellants goods has been revised based on some enquiries which were not revealed to the appellants. He pleaded that only copy of the SIB Report has been furnished to them. The said report is reproduced below for convenience of reference : VII (ICD)/6/225/87 The case of M/s. Micro Industries, Calcutta is still under investigation. As regard valuation aspect, telex were sent to different part and in response, Bombay Custom House has informed that the price noticed is US $ 0.066 per pesbut the copy of Invoice is still awaited from Bombay Custom House. This branch has also made from Singapore from other sources. The prices received in the form of telex from a trader in Singapore and a proforma Invoice of manufacturer M/s. Four Pillars Manufacturing Pvt. Ltd., Singapore are placed apposite for n/a at your end. Sd/-" 6. He pleaded that there was a re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor of C. Ex., Bombay - 1987 (29) E.L.T. 318. 7. He pleaded that the value of similar goods imported at Calcutta by M/s. Metal Calcutta the goods of the same dimension answering to the description PVC insulating tapes was allowed by the authorities accepting the invoice value of $ .044 per roll as against the value of $ .042 per roll of the appellant s import. This invoice is dated 7-3-1986. He, further, pleaded that the appellants goods had been subjected to fine of 249% which was very high taking into account the circumstances of the case. He Pleaded that the penalty levied on the appellants was not justified as the Collr. had not attributed any mala fides to the importers and in fact had absolved them of the same. He pleaded that the goods had been under detention and were suffering a demurrage of Rs. 1000/- per day. He pleaded for relief in the matter based on his pleas and the circumstances of the case. 8. The learned JDR for the Department, Shri A.S. Sunder Rajan stated that it is an admitted position that the import is sought to be made in terms of Appendix 17 of the ITC Policy 1985-88 which is for registered exporters. He drew our attention to the relevant para 1 of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be imported and column 6 says that black insulating tapes cannot be imported because they are adhesive. If I were left to read the entry as it stands I would construe black insulating tapes which are included in electric insulation as meaning tapes the principal use of which is insulation and adhesive tapes in column 6 as tapes the principal use of which is adhesiveness or principally meant for sticking. If so, I do not think that the remarks column can control column 2 to the extent claimed by the Department. In the present case there is no dispute that black insulating tapes, although they have the quality of adhesiveness, are principally used for the purpose of insulation. The importer has stated in his letter dated May 4, 1962 and has reiterated in his pleadings that the goods imported are used for electrical insulating purposes only and that adhesiveness is one of the incidental qualities required for such use. That statement has not been challenged on behalf of the Department. See also para 11(a) of the petition and para 10 of the affidavit of the Assistant Collector dt. Jan. 14, 1963. In para 10 of the affidavit dated January 14, 1963 it is admitted that black insula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age is also shown. It is seen that in the case of appellants goods while the adhesion property is shown is .455, the same property in the case of production tape and PP packing tape are quite different being .1 for tape with a Code No. 33975 and .9 for the tape with Code No. 33265. A reading of the description of the products manufactured by the appellants and the characteristics of the products as above as set out in the catalogue, it is seen that the different products are designed for different end uses. The insulating tapes have to have high insulation properties while the packing tapes have to have high adhesion characteristics. The appellants have tried to show that the PVC insulating tapes could also to be used as tape for packing purposes as the same are intended for bundling and reinforcing. 13. We observe that the bundling and reinforcing capabilities of the tape are in the context of wires and cables as the reinforcing and bundling by the use of the tape is for its insulating properties with a capacity to hold the wires and cables together. From the catalogue produced, it is clear that the tapes imported are not intended for packing purposes on account of special feat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and for which the REP licence has been issued. The question of import of the permissible variety of self adhesive tapes has to be, therefore, examined in the context of the above. On a harmonious reading of the various provisions of the ITC Policy, cited above, we observe that the import of the self adhesive tape to be allowed under para 6 as would be required for the manufacture of packing materials for the goods exported alone is to be allowed. The appellants have themselves stated that most of the licences produced are for the export garments, fish product export and subject to the general condition of para 6. Obviously, the packing materials in which the product are to be exported are made of paper card board or LDPE. The self adhesive tape that can be allowed import, therefore, has to be such as will be used in relation to these packing materials. It is not the case of the importers that they are going to use the PVC insulating tape for this purpose and even if they had pleaded so, it would not have been acceptable as the insulating tape could not possibly be used for the said purpose taking into account the properties and characteristics of the same. We observe that the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nothing on record to show that the goods, the value of which has been adopted for arriving at the assessable value, have the same properties and characteristics. 22. The Collector has drawn his conclusions based on the description and dimensions without analysis of the properties and other characteristics of the tapes. No indepth analysis has been done in this regard by the Collector to arrive at this conclusion. 23. We, therefore, find force in the appellants plea that the Collector s conclusions are not based on proper appreciation of the facts and circumstances of the other imports of goods stated to be similar. Even during the hearing before us, no evidence has been produced to establish that the goods imported by the appellants and those which form the basis of valuation in the Collector s order have identical properties and characteristics. 24. In view of this, we hold that the Collector s findings for upward revision of the value are not based on any acceptable evidence and, therefore, the adoption of the basis for revaluation of the goods has to be held to be bad in law and his findings in this regard are, therefore, set aside. The appellants are, therefore, entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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