TMI Blog1998 (9) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... DR for the Revenue. 3. The appellant imported 128 pieces of old and used engines. Examination showed that 23 of the engines were found fitted with Air Conditioner compressors. The Commissioner in the impugned order held it as the importers not giving a true and correct description of the goods. On this ground, he rejected the transaction value declared. He further held that second hand goods could not be compared with other second hand goods. On this observation he did not follow the method of determination of value under Rule 5 and 6 but determined the value under Rule 7. He observed that although contemporaneous imports of similar makes for equal number of the engines was Rs. 10,38,592/-, on this observation, he enhanced the value to R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he discretion is given, it has to be used in consistent manner. If a practice has continued for number of years and is still continuing then the discrimination made against a single importer cannot be upheld. We therefore hold that the action of the Commissioner of absolute confiscation of the goods cannot sustain, and that the goods merit clearance for home consumption on payment of appropriate fine. 6. Before we come to the quantum of fine, we would deal with the escalation of the value as adopted by the Commissioner. 7. The reason for not accepting the transaction value as given in his finding is as under :- I reject the transaction value on the ground that the invoice filed along with the Bill of Entry does not give a correct a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that where 127 engines were with manual transmission, one was with automatic transmission. Presumably the invoice did not make this distinction, the Commissioner has however, not made this a point on which he denied the acceptance of transaction value. We find that the impugned order does not show valid grounds on which the transaction value has been discarded. 10. Some discussion took place on the applicability of Rules 5 and 6. The case law was cited to indicate that comparison between second-hand machine was possible [1994 (72) E.L.T. 124], as also case law to the effect that it can be done [1995 (77) E.L.T. 699]. We are not going into this issue because we find that the Commissioner did not have any valid reason to reject the determi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or anybody else. 13. In calculating the margin for redemption, Shri Doiphode submits that the fact that demurrage incurred to the extent of Rs. 2 lakhs may also be taken into account. We shall do so. 14. We now come to the aspect of penalty. The Commissioner had resorted to absolute confiscation as a deterrent measure to stem the deliberate contravention of the law. Shri Rao submits that the Collector s action of imposing high penalty is in pursuance of this thought and even if the orders of absolute confiscation did not survive, the penalty imposed of deterrent nature should be upheld. Shri Doiphode on the other hand submits that it was not a long string of imports undertaken by his client but that there were only two imports space ..... X X X X Extracts X X X X X X X X Extracts X X X X
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