TMI Blog1994 (12) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... inting amounts to KE 2300 with accessories C I Yen 35,56,540/-. (2) Paper Processor KP 520 C I Yen 18,32,760/- (3) Colour Film Processing with accessories C I 15,82,180. The freight paid on the consignments is U.S. $ 724/71 (Rs. 7,668/-). Three bills of [entry] were filed on 6-12-1983, 14-11-1983 and 6-12-1983 respectively. The goods have been invoiced by M/s. Kundan Mala International Ltd., Honkong and shipped by M/s. OHDEN, Japan from Yokayama, Japan to Bombay. The names of the Importers as per Bill of Lading were M/s. Raj Industries, Favourite Industrial Estate, Kurla, Bombay; K. Hargovindas Co., 330, Narsi Natha Street, Bombay and M/s. Chaganlal Sons, 330, Narsi Natha Street, Bombay. The Bills of Entry were noted in the name of (i) M/s. V.V. Deepa, Aromatics Pvt. Ltd., Nirmal Nariman Point, Bombay-21, (ii) M/s. Expo Combine, 26, Okalipuram, Bangalore and (iii) Gartex Insta Apparels, 17, Rajaji Nagar, Bangalore respectively, after amending the name of importer in the IGM. On 2-2-1984 at the request of the Clearing Agent the name of the Importer was changed from the above names to M/s. Bentam Industries, Bombay (Appellants) for all three Bills of Entry as the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e licence holders, Shri Parasmal Solanki and other indulged in trafficking of non-transferable import licences. Show cause notice was duly answered by the appellants M/s. Bentam Industries denying the allegations in the show cause notice. Additional Collector who adjudicated the proceedings after considering the reply to the show cause notice and submissions, confirmed the charges made in the show cause notice observing that licences in question are additional export house licences and are non-transferable. Item 9(24) of Appendix [2] of Import Policy 83-84 does not cover photographic studio and laboratory equipment. The assessable value was Rs. 4,18,849/- and not Rs. 2,78,907 as declared by the appellants. The duty works out to Rs. 2,12,294.90. With these observations among other findings, the Additional Collector held that goods are liable to confiscation under Section 111(d) and (m) of the Customs Act, 1962. Since the goods were not available for confiscation, he imposed, in lieu of confiscation, a fine of Rs. 1,00,000/- under Section 125 of the Customs Act. He also imposed personal penalty on the appellants in the following manner :- (1) M/s. Bentam Industries. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice dated 26-7-1984 was marked to these appellants. He drew our attention to the relevant portion in the show cause notice dated 26-7-1984 wherein Bentam Industries are called upon to explain and show cause and said that in the absence of the asking the appellants to show cause and mere marking copy of the said show cause notice cannot be said to be a show cause notice in the eye of law. Referring to Section 124 of the Customs Act, he said that confiscation of goods or imposition of any penalty is not sustainable in the eye of law in the absence of giving a notice and in support of his contention he referred to the following decisions :- (1) Jayanti Lal Patni Company v. Collector of Customs (Prev.) - 1990 (46) E.L.T. 249. (2) Premier Road Carriers Ltd., v. Collector of Customs - 1992 (63) E.L.T. 106 (Tribunal). (3) Mukha Mal Gokal Chand, Delhi v. Collector of Customs and Central Excise, New Delhi - 1987 (32) E.L.T. 163 (Tri.) = 1988 (12) E.T.R. 893. 7. Shri Sridharan submitted that appellants M/s. Bentam Industries are Importers and mainly three points are to be considered in Appeal No. C/566/85-A, i.e., benefit of project import (eligibility of import for conces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laboratory only and this heading will not cover the equipments which are required in Photographic Studio is not correct and this concept is defeated by subsequent Import and Export Policy 85-86 wherein under the very heading cinematographic studio and film laboratory equipment 8(39) specifies that Automatic/semi-automatic film developing processing and printing machines with micro processor based system for photographic studio. Sl. No. 9 broadly concerned with two items viz., cinematographic studio and film laboratory equipment, but sub-heading 24 is relevant to decide the item since item imported is the same as given therein. If the heading was the criterion and confined to Cinematographic items there was no necessity to put cinematographic Cameras in sub-serial No. 11 and item described in sub-serial No. 24 was not generally used in cinematography. The headings prefixed to Sections or entries cannot control the plain words of the provisions and they cannot be referred to for the purpose of construing the provision when the words used are clear and unambiguous and in interpreting the words of the provision of a Statute, the setting in which such words are placed may be taken into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was shown that proforma invoice was converted into order. In support of his contention that quotations cannot be relied in determining the value, he referred to the following decisions :- (1) Collector of Customs v. Neppon Bearings (P) Ltd., 1991 (55) E.L.T. 68 (Tribunal). (2) Sandip Agarwal v. Collector of Customs , 1992 (62) E.L.T. 528 (Cal.) He also said that Department erred in comparing with that of import of Delhi Party, i.e., M/s. Photo Dealer by Air. In this case for the first time these three machines were sold in India and this was the negotiated price on correspondence and since L.C. was duly opened, transaction was at arm s length and manufacturer s invoice is very much there, there is no reason to discard the transaction value in the absence of extra remittance. 9. Arguing for the appellants in Appeal Nos. 560 to 563/85-A, Sri S.D. Nankani submitted that it was charged against them that they were indulged in transferring the additional license to M/s Bentam Industries and such transfer was not permissible. But no show cause notice has been issued to them to defend their case. Show cause notice dated 8-5-1984 has not been served and mere marking copy of the sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icense through General Power of Attorney. The licenses were non-transferable and since the appellants and appellant Parasmal as G.P.A. indulged in such transfer committed an offence for trafficking of license. He contended that the item is neither covered by additional license nor covered under O.G.L. The item Mini Lab. is not covered by serial No. 9(24) of Import Policy as claimed and specifying the item in subsequent period under Policy 85-88 strengthens that this item was not there for the period in question under the relevant policy. He stated that initially benefit under Project Import was not claimed by the Importer and Tribunal also has taken a view in the case of Collector of Customs, Madras v. Sarathi Studios (Pvt.) Ltd., that camera for shooting of films is not eligible for benefit of project import with reference to Heading 84.66. He said that sufficient evidence was brought on record in arriving at the value of the goods on detailed investigation and during search quotation was found which has been prepared by local Agents on behalf of Supplier apart from proforma invoice. He argued that Department was justified in discarding the invoice value as it was not the normal p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iolation of Section 111(d) of Customs Act is not sustainable and we set aside penalty relating to Section 111(d). 12. Next question arises for our consideration in this case is whether item imported by the appellants M/s Bentam Industries could be imported as an item under O.G.L. It is not in dispute that appellants were actual users but according to Department item 9 of Appendix 2 covers the machines which are required in cinematographic Studio and film laboratory only and will not cover the equipments which are required in photographic Studio. Heading under Item 9 and Item 9(24) of Appendix 2 of Import Policy April 1983 - March 1984 are as follows : - 9. Cinematographic Studio and Film Laboratory Equipment. 9(24) Automatic or semi-automatic film developing and processing machines with micro processor based system. It was claimed by the appellants that description of the imported item is as given in Serial No. 9(24) and clarification given by DGTD also confirms that Fusi Minilab 30 system fully computerised is covered by Appendix 2 Srl. No. 9(24). It was also contended that Heading 9 does not specify that items are required in cinematographic studio only and on the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uotations and proforma invoices are not conclusive proof still quotation or proforma invoices from the supplier or the manufacturer are sufficient to indicate and an inrference can be drawn that price declared by the Importer was not the normal price if there was variation in price declared and quoted. In the instant case it seems not only based upon the proforma invoice but determined the value based upon the evidence of import of similar machine which has been made at New Delhi by Air. There is nothing wrong in comparing with that similar goods in determining the value as per Valuation Rules but margin is to be given due to change in mode of transport. Since we are remanding the matter in Appeal No. C/76/86-A, we are inclined to remand this matter also to the concerned Additional Collector for redetermination of the value by giving one more opportunity to the appellants to enable them to adduce evidence, if any, in support of their plea. The Additional Collector is directed to redetermine the value indicating basis in both appeals, i.e., C/566/85-A and C/76/86-A and to pass an appropriate order in accordance with law after providing an opportunity to the appellants. Redemption fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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