TMI Blog1999 (10) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... the Collector of Customs. The Collector, in the impugned order dated 30-7-1991, confirmed the demand of duty amounting to Rs. 17,18,710/- and confiscated the goods with an option to redeem the same on payment of fine of Rs. 4,50,000/- holding that a special discount of 28% had been given to the appellants by M/s. Tandem in view of the special relationship existing between them as the appellants had been entrusted with all software development projects for the exporter; that while all other importers in India could get their hardware through M/s. Wipro Information Technology, exclusive Indian representative of M/s. Tandem, the Appellants had been excluded from the purview of agreement by virtue of their special relationship with Tandem; that discount given to them was not a normal discount in the ordinary course of business and being a special discount based on special relationship it was to be added to the price; that they had misdeclared the value as they had not disclosed the special relationship, the goods were liable for confiscation under Section 111 (m) of the Customs Act and as the goods valued at Rs. 44.85 lakhs were not covered by licence, these were liable to confiscatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplier to an old customer may be different from a price which the same supplier offers to a totally new customer." He also relied upon the decision in the case of Mirah Exports P. Ltd. v. Collector of Customs - 1998 (98) E.L.T. 3 (S.C.) wherein it was held that ordinarily the court should proceed on the basis that the apparent terms of the agreement reflect the real state of affairs and what is to be examined is whether the Revenue has succeeded in showing that the apparant is not the real and that the price shown in the invoices does not reflect the true sale price. The ld. Counsel contended that there is no evidence on record that M/s. Tandem had supplied some or similar equipments to other customers in India at a price higher than the one at which they were supplied to them; that according to Apex Court in Mirah Exports case there may be lower prices if the Customer generated additional volume of sales. The ld. Advocate also mentioned that there is no allegation in the notice that the supplier and the Appellants had any interest in the business of each other; that they had produced an affidavit of Shri Santha Kumar, Vice President of Tandem wherein he had affirmed that they e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly larger period of limitation was not invokable. He relied upon the decision in the case of C.C.E. v. Union Carbide (I) Ltd. - 1989 (43) E.L.T. 152 (Tribunal) wherein it was held that suppression cannot be accepted if the adjudicator under Central Excise Law does not administer the law s corrective to warn the trespassers for the future... He also relied upon the following decisions. (i) Wheelbrator Alloy Castings Ltd. v. C.C.E. - 1989 (39) E.L.T. 579 (Tribunal) (ii) TELCO Ltd v. C.C.E. - 1990 (50) E.L.T. 644 (Tribunal) (iii) Consolidated Hoists (P) Ltd. v. C.C.E. - 1992 (60) E.L.T. 317 (Tribunal) (iv) Punjab Electricity Board v. C.C.E. - 1989 (44) E.L.T. 340 (Tribunal) 5. Finally the ld. Advocate contended that confiscation of goods under Section 111(d) was unwarranted as, firstly, the declared value was correct; secondly there was sufficient balance in the licence available to take care of the enhanced value; thirdly for the purpose of debiting a licence, it is the C.I.F. price and not the deemed value under Section 14 which is required to be debited. He relied upon the decision in U.O.I. v. Glaxo Laboratories (I) Ltd. - 1984 (17) E.L.T. 284 (Bom) and Atul Produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Tandem Computers International Incorporated and M/s. Wipro Information Technology Ltd. contained an Exclusion clause which empowered Tandem to execute an agreement with a value added reseller, original equipment manufacturer or multinational end user; that the Agreement also contained a clause about prices according to which Tandem may grant a price reduction to the particular end-user . They have also mentioned that according to the terms of the Agreement Annual Minimum orders to be solicited by Wipro, no credit would be given to Wipro regarding the products that be delivered to end users pursuant to Exclusion clause and that may be delivered to Tata Consultancy Services for its own internal use. The perusal of Agreement does show that Tandem has the right to supply products directly or indirectly without routing the same through Wipro and it cannot be alleged that all other importers in India had to get their hardware through Wipro. We also observe that as per Rule 3 of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988, the value of imported goods shall be the transaction value. As per Rule 4, the Transaction Value of imported goods shall be the Price ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
