TMI Blog1985 (3) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... ged that the appellants had misdeclared the value, rendering the goods liable for confiscation under Section 111(d) and(m) of the Customs Act read with Section 3(2) of the Import and Export (Control) Act, 1947. The appellants were called upon to show cause against such action being taken and also for payment of duty at the value suggested. 2. The appellants under their reply dated 14-4-1978 contended that the prices mentioned in their invoices were correct and proper and had been arrived at on negotiations and there had been no misdeclaration. They claimed that the sellers had purchased the subject goods in 1976 itself at the prices at which they were now disposed of (except in respect of certain items which were slow moving) and that as the sellers could not obtain better prices in spite of the time during which they had the goods in stock they were prepared to sell at the prices mentioned in the invoices and they were therefore the proper prices. They further claimed that the price list of 7-2-77 of A.E. Auto Parts (relied upon by the department) was only a mere offer and indicated the maximum prices and it could only be the starting point for bargaining and in fact M/s. A.E. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e parties the department would be entitled to levy duty on the deemed price as would be arrived at on application of the principles of Section 14(l)(a) of the Customs Act. This could be found stated at page 291 as follows : This actual price of supply which we would assume is a genuine price in that deal can vary from the international market price which is the value for the purpose of Customs taxation. 5. It is therefore to be considered whether the price mentioned in the invoices relied upon by the appellants is the true price and if not what would have been the deemed price as under Section 14(l)(a) of the Customs Act. It is with reference to findings on these points that the decision will have to be given in this appeal. 6. The appellants had relied upon the letter dated 22-8-1977 of M/s. Harvin Exports under which they have offered to M/s. Overseas Manufacturers Sales Company, Bombay, main bearings AJH 5285 (of various sizes) at 0.58 each and also connecting rod bearings AJH 5286 (of various sizes) at 0.69 each. The prices are mentioned as FOB. The appellants have produced another letter dated 19-9-1977 by Overseas Manufacturers Sales Company to M/s. Harvin Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l invoices of the Glacier Metal Company Ltd. (the manufacturers of the subject goods) issued to M/s. Harvin Exports on 4-6-1976 (invoice No. 3108) and 31-3-1976 (invoice No. 2922), copies of these invoices having been sent by M/s. Harvin Exports to the appellants at their request. It is pointed out for the appellants that the subject goods had been received by M/s. Harvin Exports under these invoices and had been therefore lying with them since 1976 and as they could not be disposed of by M/s. Harvin Exports even by the end of August 1977 they offered them for sale under their letter dated 22-8-1977 at the rates mentioned therein. The appellants had during their appeal before the Board relied upon a letter dated 27-2-1978 from M/s Harvin Exports in which they had referred to the abovesaid commercial invoices. The Board had no doubt observed that the said letter dated 27-2-1978 had not been produced though referred to. Shri Sogani states that a copy of the letter was in fact given. In any event we have looked into a photocopy of that letter also. 10. The acceptability of the arguments above-mentioned would therefore depend upon the truth of the allegation of stock having been h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 731 1496 865 698 476 491 1071 1136 1132 Confirmataion dated 28-9-1977 731 1496 865 698 476 491 1071 1136 1132 Invoice dated 11-4-1977 (1) 400 15 400 1071 1136 1132 Size Invoice dated 4-11-1977 (2) 731 1298 850 1198 126 441 Total Qty. invoiced) (1+2) 731 1698 865 1198 526 441 1071 1136 1132 Excess ov- er order 202 (+) 500 (+) 50 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r price than the one mentioned in the letter dated 22-8-1977 or the Orders and invoices following the same. The contention for the appellants in respect of that letter is that the same was merely an offer for sale-at the prices mentioned therein but that the actual prices were to be concluded on further negotiations only. In their reply to the show cause notice the appellants had mentioned, with reference to this letter dated 7-2-1977, that Fiat Engine bearings mentioned in the said price list have been exported by M/s. A.E. Auto Exports at almost half the prices mentioned therein. During adjudication no proof had been offered of such an allegation. Before us Shri Sogani produced an invoice with reference to Perkins bearings, stating that the same related to item No. 13 of the letter dated 7-2-1977 and that the supply was at a price lesser than the one mentioned in the letter dated 7-2-1977. No reference had been made to this supply before the lower authorities. Nor has been any application made to receive this as an additional evidence. It is not known whether the invoice now relied upon by the appellants was itself the subject matter of any adjudication or whether it had been acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment assessment under Rule 8 of the aforesaid Rule and not otherwise. But then, the resort to the Rules can be only if the assessable value cannot be determined under clause (a) of Section 14 itself. 16. The question is if the assessable value for the goods imported on 7-12-1977 can be determined under clause (a) of Section 14 of the Act 7 If not, which is the Rule applicable amongst the Valuation Rules framed under clause (b) of Section 14. 17. It was admitted at the Bar that there were no contemporaneous imports. Nor were the market prices ruling at the time and place of importation ascertained. In fact, from the letters dated 10-8-1978 and 3-7-1978 of M/s. Overseas .Manufacturers Sales Company and Grip International respectively, it would appear that the market price ruling at the time and place of importation cannot be ascertained since it is stated in the said letters that they had not been importing identical goods for the previous 4 years. There is no evidence of the market price in India for identical goods the appellants as well. 18. It, therefore, appears clear that the assessable value has to be determined in terms of the Valuation Rules under clause (b) of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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