TMI Blog1994 (8) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... /- was levied. He, further, imposed a total penalty of Rs. 1,25,000/- on the appellants, M/s. Deepak Electronics. A further penalty totalling Rs. 20,000/- was imposed on the appellant, Shri Parmod B. Agarwal. 2. The brief facts are that an intelligence was gathered by the Directorate of Revenue Intelligence that appellants, M/s. Deepak Electronics are importing video magnetic tape on jumbo rolls under DEEC Scheme from Hongkong and that the goods have been misdeclared in respect of their description, quantity and value. A discreet watch was kept on Bill of Entry No. 1391/108 dated 24-7-1991 covering import of 48 cartons containing 48 rolls of video magnetic tape on jumbo rolls of length 10,000 ft. each roll of width 123/4 inches which have been filed in the Bombay Customs House. The cartons were examined in the presence of representative of the importers M/s. Mirah Shipping Services. The invoice value declared for the goods was Hongkong dollar 625 per roll CIF Bombay, but it was observed that video magnetic tape on jumbo rolls of the same country of origin had been assessed at the Customs House at higher value of Hongkong dollar 1050 per roll CIF. The matter was, therefore, taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o not comparable. The ld. Counsel, further, pointed out that according to the definition in Rule 2 of the Customs Valuation Rules, 1988, identical goods means imported goods which are same in all respects including physical characteristics, quality and reputation as the goods being valued. Also similar goods have been defined in Rule 2(e) in the same Rules. In the present case, the Collector has applied Rule 5 of the Valuation Rules relating to transaction value of identical goods. However, the ld. Counsel urged that the goods are not at all identical and the burden of proving valuation on the basis of identical goods is on the department. Relying upon the case law reported in 1992 (62) E.L.T. 528 in the case of Sandip Agarwal v. Collector of Customs, the ld. Counsel argued that Rule 4 of the Valuation Rules relating to transaction value is the same value for imported goods and the other Rules cannot be invoked by the department unless this Rule is shown to be not applicable to a consignment. The ld. Counsel, further, relied upon the Tribunal s decision in the case of Laxmi Colour Lab v. Collector of Customs reported in 1992 (62) E.L.T. 613 (Tri.) that evidence of the comparable im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the goods which has been set out in the show cause notice. These facts were not available at the time the proper officer passed the order for clearance under Section 47. The ld. SDR urged that the question of review does not arise in this case and fresh adjudication proceedings will be justified and he relied upon the case law reported in 1993 (68) E.L.T. 289 (Cal.) in the case of Chandrakant Seth v. Collr. of Customs, and in the case of Madanlal Steel Industries Ltd. v. Union of India reported in 1991 (56) E.L.T. 705 (Mad.) = 1994 (51) ECR 13 (Mad.). In this judgment, the ld. S.D.R. pointed out that the High Court has considered the Bombay High Court decision in the case of Popular Dyechem (supra). It was submitted by the ld. SDR that the provision of confiscability under Sec. 111(m) applies to goods already cleared regardless of the fact that such clearance was under Sec. 47 by a proper officer. Such goods can also be confiscated. The ld. SDR, further, argued that it is well settled that when the valuation of the goods, as declared in the Bill of Entry, is not found to be correct, applying Rules 5 to 8 of the Valuation Rules is in order and also relied upon the following ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of Price of Imported Goods) Rules, 1988. The definition in the Rule reads as follows : (c) identical goods" means imported goods - (i) which are same in all respects, including physical characteristics, quality and reputation as the goods being valued except for minor differences in appearance that do not affect the value of the goods; (ii) produced in the country in which the goods being valued were produced; and (iii) produced by the same person who produced the goods, or where no such goods are available, goods produced by a different person." 6. In the present case, admittedly, the goods imported are video magnetic tape in jumbo rolls of 10,000 ft. and width of 123/4 inches. The invoice for identical goods imported at about same time, by Hari Ram Gobind Ram is also the same. There is no difference in physical characteristics of the goods. It is also seen from the record that the identical goods taken for consideration are also produced by the same manufacturer, namely, Acme Magnetic Ltd. and from the same country, namely, Hong Kong. In such a context, the difference pointed out in the width as between 330 mm and 123/4 inches is minor. The transaction value of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) ECC 325 (Mad) in the case of Madanlal Steel Industries Ltd. v. Union of India. In that case, the High Court has also considered the decision of Delhi High Court in Jain Shudh Vanaspati v. Union of India - 1982 (10) E.L.T. 43 and Union of India v. Popular Dyechem - 1987 (28) E.L.T. 63 (Bom.) = 1990 (26) ECC 334 of the Bombay High Court which have been relied upon by the appellants, herein. The Madras High Court has also noted the decision of this Tribunal in the case of R.K. Industries v. Collector of Customs Central Excise - 1989 (39) E.L.T. 316. The High Court has observed as follows : Both the Bombay High Court judgment in the case of Union of India v. Popular Dyechem - 1990 (26) ECC 334 (Bom.); 1987 (28) E.L.T. 63 and the Delhi High Court judgment in the case of Jain Shudh Vanaspati Ltd. and Others v. Union of India and Others 1982 (10) E.L.T. 43, on their peculiar facts, are good for taking notice of the order under Section 47 of the Act and saying accordingly that unless that order was set aside, no proceeding for confiscation should have been taken. It is difficult, however, to accept this as a law, as once there is a clearance under Section 47 and/or Section 51 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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