9911796707
TMI Blog1992 (11) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... expansion valves and the driers were of two different types namely, "Filter Drier Receiver Model No. 460 (Made in Canada)" and "Receiver Drier Model LP-8-318 (Made in Japan)". The Department took the stand that apart from misdeclaring the origin of the driers, the importers had also misdeclared the description of the cooling coils fitted with expansion valves which being sub-assemblies of car air conditioners had to be deemed as "consumer goods" falling under Serial No. 146 of Appendix 2B of the Import Policy for the period 1990-93 and the Import Licence covering "cooling coils" under Sr. No. 538 (6) of Appendix 3, Part A of the Import Policy 1990-93 against which they had been imported was not valid. Further, having regard to the unit price of S $ 50.00 CIP in respect of cooling coils (without expansion valves) of Japanese origin shown in invoice No. CX-004/88 dated 16.9.1988 issued by M/s. Products International Pvt. Ltd. Singapore and the price of US $ 13.00 per piece FOB in respect of cooling coils with thermostat shown in invoice No. 61/18654/BEK dated 29-11-1989 issued by M/s. That Heat Exchange Co. Ltd., the Department felt that the value of the imported cooling coils with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri B.B. Gujral appeared before us. He stated that expansion valve is an integral part of cooling coil. He contended that for this reason there was no indication in the examination report on the reverse of the Bill of Entry that there was any misdeclaration of the description of these goods. He argued that cooling coils were specifically covered as Assemblies/Sub-assemblies under serial No. 483 (6) of Appendix 6, Part-A of the Import Policy for the period 1988-91 and accordingly there was no force at all in the finding of the adjudicating authority that they were "consumer goods" covered by serial No. 146 of Appendix 2 of Part-B which was a general entry. He added that cooling coil assemblies could not be deemed as 'consumer goods' since according to the definition against serial No. 13 at page 3 of the Import Policy 1988-91 "consumer goods" were consumption goods which could directly satisfy human needs without further processing. He stated that cooling coil assemblies could not directly satisfy human needs. the support of his contentions he placed reliance on the Tribunal's decision in the case of Ganeshrajah Organisation v. CC, Madras - reported in 1991 (56) E.L.T. 830 (Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t given any reason for rejecting the documentary evidence referred by the appellants in respect of contemporaneous imports of identical goods by other importers, the allegation regarding undervaluation of the cooling coils was arbitrary and without any basis. He argued that in absence of any allegation of extra commercial consideration and any evidence of contemporaneous import of identical or similar goods at higher values, the Department was bound to accept the transaction values as per the invoice produced by the appellant. In support of his submissions, Shri Gujral cited the following case laws : 1. Shiv Shakti Enterprises v. Collector of Customs - reported in 1991 (52) E.L.T. 439 (T). 2. Garg Fasteners v. Collector of Central Excise - reported in 1990 (47) E.L.T. 118 (T). 3. Sawhney Export House (P) Ltd. v. Collector of Customs - reported in 1992 (60) E.L.T. 327 (T). 4. Elite Packaging Industry v. Collector of Central Excise - reported in 1992 (60) E.L.T. 311. 5. Opal Exports (P) Ltd. v. Collector of Customs - reported in 1992 (60) E.L.T 232 (Cal). 6. Ganshyam Chejra v. Collector of Customs- reported in 1989 (44) E.L.T. 202. 7. Honesty Traders v. Collector of Customs, C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e being regularly cleared by the Customs Authorities at comparable prices have to be disregarded since specifications and part numbers of the goods covered by those invoices were different. In support of his contentions he cited the following case law : 1. Shiv Shakti Enterprises v. Collector of Customs - reported in 1991 (52) E.L.T. 439 (T). 2. Garg Fasteners v. Collector of Central Excise - reported in 1990 (47) E.L.T. 118 (T). 4. We have examined the records of the case and considered the sub- missions made on behalf of both sides. It is seen that the following are the main points that arise for consideration in this case : 1. Whether the imported coils fitted with expansion valves could be deemed as covered by the Import Licence held by the appellants covering goods falling under Serial No. 538(6) of Appendix 3 Part A of the Import Policy for the period 1988-91 or they have to be deemed as 'consumer goods' in terms of Serial No. 146, Part B of Appendix 2 of the Import Policy (1988-91). 2. Whether on the basis of the evidence on record the findings in the impugned order in regard to the misdeclaration of origin, description and value of the goods could be sustained. 5. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1988 issued by M/s. Products International Private Ltd. at pages 1 and 2 of the Paper Book, that cooling coils and expansion valves have been invoiced separately. It is, therefore, evident that cooling coils and expansion valves are separate components and expansion valve does not constitute an integral part of cooling coil as claimed by the appellants. The licence - against which appellants have imported the cooling coil sub-assemblies covers items falling under Serial No. 483 of Appendix 3, Part A of the Import Policy 1988-91. It is seen that sub-item (6) of serial No. 483 of Appendix 3, Part A reads as :- "483. Assemblies/Sub-assemblies the following :- (1) .......................... (2) .......................... (6) Cooling coils and tube bundles ..... On a plain reading of the serial No. 483 (6) of Appendix-3 of Part-A it follows that it covers only cooling coils and not sub-assemblies comprising of cooling coils with attached expansion valves. For these reasons we hold that these sub-assemblies were not covered by the Import Licence held by the appellants. We/therefore, uphold that confiscation of the imported sub-assemblies consisting of cooling coils with attached ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduced below: "Section 14(1) of the Customs Act provides that for the purpose of the Customs Tariff Act, 1975, or any other law for the time being in force where under a duty of customs is chargeable on any goods by reference to their value, the value of such goods shall be deemed to be the price at which such or like goods are ordinarily sold, or offered for sale, for delivery at the time and place of importation in the course of international trade, where the seller and buyer has no interest in the business of each other and the price is the sole consideration for the sale or offer for sale. In the present instance, mere is no allegation that the seller and buyer are related persons or that they are interested in the business of each other or that the price is not the sole consideration for the sale or offer for sale. The price with which the comparison is to be made is that at which such or like goods are ordinarily sold, or offered for sale, for delivery at the time and place of importation. In the present case, the two prices with which the invoice price is sought to be compared do not fit in with this provision. The Department has also not produced any evidence concerning o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14." 9. Since the Department has not produced evidence in regard to the imports of comparable goods at or about the same time as the present import, on the ratio of decisions quoted above we hold that the Revenue has failed to establish the charge of under-valuation and accordingly we hold that the Additional Collector's order holding the sub-assemblies consisting of cooling coils with attached expansion valves as liable to confiscation under Section 111(m) of the Customs is not sustainable. However, in view of our findings in this order we confirm the order confiscating the goods under Section, 111(m) on account of the imported sub-assemblies having been misdeclared as cooling coils. 10. We find that in regard to the valuation of driers and FICD, the adjudicating authority had resorted to Rule 7 and determined the value on the basis of the market price at which similar goods were being sold in the country after importation. In this regard it would be relevant to refer Rule 3 of the Customs Valuation (Determination of the Price of Imported Goods) Rules, 1988 which is reproduced below :- "Rule 3. Determination of the method of valuation - For the purpose of these rules - (i) t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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