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TMI Blog1989 (2) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... rocessing and Printing Equipment." The equipment is stated in the OGL APP. 1 Part B List 8 Item No. 39 of Import Export Policy 1985-88. The goods are in very good condition and as per your order dt. 12-12-86. The equipments comprise the following: (a) Four - DN Negative Processors Serial Nos. 3924,2525,3914 & 3923. (b) Four Colour Printer Serial Nos. 2225, 2161,1911 & 1907. (c) Four Film Dryers. (d) Four sets of wooden cabinet stands for the film processors and printers." 2. As the goods imported were second-hand, a certificate dated 27-1-1987 issued by Daplas Electronics (P) Ltd., Chartered Engineers, certifying that the following 4 sets were KIS Mini Lab Colour Photographic Processing System viz., (a) DN Negative processors Sl. Nos. 3924, 2525,3914 & 3923. (b) Magnum speed printer Sl. Nos. 2225, 2161,1911 & 1907. together with their associated Film Dryers and Wooden Cabinet stands for the above mentioned sets were inspected and the age of the machine was certified as 3 years and the then value of the same was US $ 2,000/- per set. The importers also produced a copy of catalogue of M/s. KIS INDUSTRIES (P) LTD., for the KIS Mini Lab system as well as KIS Colour Analyser. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mporters had produced xerox copy of catalogue of KIS Mini Lab System. The same catalogue was produced by Shri K.A. Basheer when his statement was recorded on 30th March,1987. The department obtained a quotation from M/s. KIS Industries Pvt. Ltd., Singapore through a source. According to the said quotation the price of 1 Unit KIS Mini Lab Magnum speed was found to be US $ 22,750 GIF Madras. 5. As per the detailed examination report, the importers had imported 17 complete units of KIS Mini Lab system (both used and new) apart from a few pieces of colour printers, film dryers and cabinets as well as other items viz., (a) 2 Nos Vacuum Cleaners (used) (b) 2 Nos Water Pumps (used) (c) 1 No Air-conditioner (used) with Stabilizer (d) 1 No Steel Cash Box (used) (e) 4 Nos Cotton Shirts (new) (f) 2 Nos Wooden Tables (used) (g) 5 Nos Steel Stools (used) (h) 8390 Nos Negative Wallets in 3 packages (i) 50 Nos Plastic Spools (used) (]) 50 kgs. used wires. 6. These items were found imported as against the declaration of 4 sets of secondhand KIS brand still photography processing and printing equipment. Out of 17 complete KIS Mini Lab systems, 7 units had to be treated as new and balanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m), (1) and (d) of the Customs Act. However, the same were allowed to redeemed on payment of a fine of Rs. 5 lakhs under Section 125 of the Customs Act, 1962 :- (i) 4 sets of second hand KIS brand still photographic processing & printing equipment having Serial Nos. 3924, 2525, 3914 and 3923 in the negative processors and 2225, 2161,1911 and 1907 in the printers (i) 4 sets of second hand KIS brand still photographic processing & printing equipment having Serial Nos. 3924, 2525, 3914 and 3923 in the negative processors and 2225, 2161,1911 and 1907 in the printers Rs. 5,30,732 (ii) 2 Nos. Vacuum Cleaners (used) 1,000/- (iii) 2 Nos. Water Pumps (used) 200/- (iv) 1 No. Air-conditioner with Stabilizer (used) 1,500/- (v) 1 No. Steel Cash Box (used) 750/- (vi) 4 Nos. Cotton Shirts (new) 40/- (vii) 2 Nos. Wooden Tables (used) 150/- (viii) 5 Nos Steel Stools 150/- (ix) 8390 Nos Negative Wallets (3 packages) 50/- (x) 50 Nos. Plastic Spools 10/- (xi) 50 kgs used wires 50/- 10. A penalty of Rs. 5 lakhs was also imposed on Shri KA. Basheer, Proprietor of M/s. Singapore Colour Centre, under Section 112(a) of the Customs Act. Being aggrieved by the said order the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yer. A letter to this effect is part of the paper book (Page 115) filed by the Respondent. The said letter dated 20th August, 1987 is written to Shri K.A. Basheer by M/s. KIS Industries (Pvt) Ltd. Shri Lakshmikumaran, the learned Advocate has drawn the attention of the Bench to the Inspection Report of the Appraiser, which appears from pages 1 to 8 of the paper book filed by the Respondent and to the Bill of Entry filed by the appellants which appears on pages 9 & 10 of the Paper book. Shri Lakshmikumaran states that the Revenue's examination report clearly shows that the machine imported is 'Papier Model' which is at Sl. No. 109 of the examination report. It reads "1 Unit used papier colour printer Sl. No. TN 1913A -1". He has also slated that the inspection report on page 1 pertains to Negative Processor and Colour Printer and in all the items it is mentioned 'TN/DN' which clearly shows that the machine imported is a 'Papier Model'. There were totally 17 items and of them 12 were in working condition and 5 were in broken down condition. Shri Lakshmikumaran, the learned Advocate has, therefore, stated that the Collector's finding that the machines imported were 'Magnum Model' is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the goods on examination were found to be in agreement with the description given in the catalogue and in the Chartered Engineer's Certificate. The appellants had declared the value of the goods at US $ 8,000 which is equivalent to Rs. 1,06,146 and the Revenue has assessed the value of the same at more than Rs. 24 lakhs. The appellant had claimed that the equipment imported was 'Papier Model' whereas as per the Revenue it is Magnum Model. Shri Durghayya has referred to the letter written by DBS Finance Ltd. to M/s. Premier Commercial Enterprises dated 9th September, 1986 which appears on page 31 of the Respondent's paper book. It clearly shows that the machine was capable of printing 3R, 4R and 5R sizes and as such it is a Magnum Model. Shri Durghayya also referred to the letter written by M/s. Premier Commercial Enterprises to DBS Finance, whereby the appellants had accepted the offer. In all the appellants had imported 17 Units and had declared only 4 Mini labs. The appellants claim before the Tribunal that the importation was correct is not acceptable. This plea was not taken by the appellant before the adjudicating authority. There is mis-declaration of value as well as q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances of the case. Facts are not in dispute that in the Bill of Entry, the appellants had given the description as "Four sets of second-hand KIS brand still PHOTOGRAPHY PROCESSING AND PRINTING EQUIPMENT" and the value was declared at Rs. 1,06,146 and the value as per invoice was CIF US $ 8,000/-. We have also gone through the Chartered Engineer's Certificate, which is reproduced below :- "Daplas Electronics (Private) Limited P.O. Box 195 Katong, Singapore 9143, CABLE : DAPRONICS TELEPHONE 414967 Your Ref: Our Ref: AW/COV/8701-1 Singapore 27th January, 1987 Singapore Colour Centre, 669, Mount Road, Madras 600 006 India. Dear Sirs, CERTIFICATE OF VALUATION I, ALLAN Y K WONG, Chartered and Registered Professional Electrical Engineer hereby certify that I have personally inspected the following four sets of KIS mini lab colour photographic processing system: Name of Manufacture : KIS Industries Pvt Ltd. A wholly-owned subsidiary of KIS International, Grenoble, France. Machine Sets: DN Negative Processor, Serial Nos. : 3924, 2525, 3914,3923 Magnum Speed Printer : Serial Nos. : 2225, 2161, 1911 & 1907 together with their associated Film Dryers and wooden cabinet stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1984. This model can only print one size of photographs and take only one size of paper." Para (ii) of the letter shows that KIS Magnum Model was intrduced in 1984 and this model could print three different sizes of photograph namely, 3R, 4R and 5R sizes, and the production of this Model was stopped in 1985. As per the Chartered Engineer's certificate the year of manufacture of the machines is 1983. The genuineness of the Chartered Engineer's certificate has also not been doubted by the Revenue authorities. The examination report which runs from pages 1 to 9 of the Respondent's paper book clearly shows that most of the goods imported were used. There are some new items also on page one of the examination report. It also contains details of Sl. Nos. and date of manufacture of the machines. A perusal of the same shows that for negative processor and colour printers the words TN/DN' are shown. Page 1 of the Respondent's paper book is reproduced below :- "Details of serial number and date of manufacture noted on 3-8-1987" Negative Processor Colour Printer 1. 1-11-1983 DN 3917 1. TN 2227 A 1-84 -06-1983 2. DN 2096 2. TN 1930 A 6-83 -09-1983 &en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w DN 3924 130. Used TN 2225 A 147. New DN3890 135. Used TN 1923 A 151. New DN 3929 136. Used TN 1862 A 148. Used DN 3913 126. Used TN 1911 A 149. Used DN 2534 A 145. Used TN 2142 A 150. Used DN 2145 A 137. New TN 1860 A 152. Used DN 2528 A 138. New TN 2150 A 153. Used DN 2096 A 139. New TN 2228 A 154. Used DN 2093 A 140. New TN 1611 A 155. Used DN 3917 141. New TN 1930 A 156. Used DN 2074 A 142. New TN 1931 A 157. Used DN 1829 A 143. New TN 1854 A 158. Used No. not given 144. New TN 1851 A 146. New TN 2227 A 129. Used TN 2222 A 7 New -10 Used 10 New-9 Old 18. A detailed examination of the examination report shows that the colour printers and processors are DN/TN models. The manufacturers in their letter dated 20-8-1987 have mentioned that Papier Model was also known as TN/DN model which was manufactured until 1984. The learned Collector in Para 48 of his order has accepted the factum that the imported machines are old ones whereas the extract from the examination report which is reproduced above shows that out of the total 17 negative processors 7 are new and ten are old and of the colour printers 10 are new and 9 are old. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o resort to the provisions of Section 14(l)(b) of the Customs Act, 1962 read with Rule 8 of the Valuation Rules. For 9 sets of colour processors and printers we order that the value should be adopted at US $-2,000 per set fob and for 8 sets of processors and printers the value should be at US $ 3,000 fob per set. The price of brand new KIS Mini Lab Papier Model with accessories is at US $ 4,000/- fob per set, as per invoice No. P/18-2-1983 dated 14-2-1983 raised by KIS Industries (Pvt.) Ltd., in favour of M/s. Fajrmas Foto, Indonesia, which appears at page 112 of the Respondent's paper. This invoice was relied upon by the appellants and was attached with the reply to the show cause notice dated 27-8-1987 which appears on page 123 of the Respondent's paper book. There is no catalogue or price lists on record. Genuineness of this invoice has not been doubted by the Revenue authorities and reliance has been placed on this invoice accordingly. Regarding the valuation of other items found in the consignment, value as adopted by the Collector is accepted namely: (i) 2 Nos. Vacuum Cleaners (used) Rs. 1.000/- (ii) 2 Nos. Water Pumps (used) 200/- (iii) 1 No. Air-conditioner with Stabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 14-2-1983 which appears on page 112 of the Respondent's Paper book is in respect of one set. A simple reading of para 64 of AM 85-88 shows that the intention behind the production of certificate from the Chartered Engineer is for ascertaining the age and life of the machinery. The Chartered Engineer in his certificate has mentioned the year of manufacture as 1983 and he has mentioned the age of the machine after reconditioning as 12 years. We have perused the examination report by the Revenue authorities which runs from page 1 to 10 of the paper book. A detailed examination of the report also shows that in most of the parts, the year of manufacture is 1983. As per the observations in the foregoing paras we have treated 9 sets as old and 8 sets as new. The importation of 4 sets is in accordance with Para 64 of the AM 85-88 Policy read with Appendix 1 Part B Sl. No. 39. Accordingly we hold that there was no justification for levying any fine in lieu of confiscation in respect of 4 old Mini Lab systems. However, there is justification for confiscation of 13 Mini Lab systems which were in excess of the quantity declared in the Bill of Entry. Keeping in view the totality of the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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