TMI Blog2003 (3) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... eem the same on payment of fine of Rs. 4,00,000/- besides imposing penalty of Rs. 50,000/- on the appellants under Section 112(a) of the Customs Act, 1962. The goods are under the custody of the department and has not been redeemed. 2. Brief facts of the case are that the appellant-importers have filed BE No. 415078, dated 2-8-2002 under DEPB scheme through their CHA M/s. Sri Pavithra Enterprises, Chennai for clearance of 500 flasks Parada (Crude Drugs) totally weighing 17,237.46 Kgs (net) valued at USD 19,000/- (C F). The goods were classified by them under CTH 1211.90 and CETH 1211.90. The importers filed the relevant invoice packing list, certificate of origin showing the country of origin of the goods as USA, bill of lading and DEPB s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kolkata 1-8-02 200 161.50 Mumbai 24-7-02 200 150.00 Mumbai 9-7-02 200 165.00 The department also found that according to London Bulletin the contemporaneous quotations to mercury varied between USD 145 to 165 during the period for the minimum purity of 99.99%. The department also found that importation was made from M/s. Bethlehem Apparatus Co. Inc. USA by another importer at USD 155/- per flask (CIF). In the circumstances proceedings were initiated against the appellants by issue of show cause notice and the proceedings culminated in the order impugned as aforesaid. The appellants challenge the impugned order on the following grounds : (a) The goods imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inasmuch as the appellants have produced all the relevant documents to prove the price declared by them and it is not the case of the Department that the appellants have withheld any information from the department in this regard. He further submitted that importation made by the appellants cannot be compared with the imports made at different ports as indicated above and relied upon by the department inasmuch as the importation in the present case is 500 flasks whereas the ones relied upon by the adjudicating authority, the maximum quantity involved was just 200 flasks as could be seen from the table drawn above. He has also cited various judgments of the Hon'ble Apex Court particularly the latest judgment on the subject in the case of M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. 4. Shri C. Mani, learned JDR appearing for the department defended the order impugned and submitted that the learned adjudicating authority has discussed in detail the two issues i.e. classification of the item and the valuation of the goods in the order. The learned JDR in particular referred to para 12 of the order impugned wherein the Commissioner has discussed in detail the manufacturing process of Parada and came to a conclusion that mercury' imported by the appellants and Parada contemplated in Ayurveda are not one and the same. He has correctly held the goods viz. Mercury imported in the present case, find a specific place under Chapter CTH 2805.40 and hence classifiable under that heading. As regards valuation adopted he submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has relied upon five importation made at different ports in July, 2002 and August, 2002 which we have extracted under para 2 above. As could be seen from the above table the quantity imported in those cases ranged from a mere 60 flask to 200 flask and the price varied from 150.00 to 165 USD per flask whereas the quantity imported in the present case is 500 flasks. The countries from where those importations have been made are not found in the order impugned and so also the port from where those goods have been shipped. The department has also placed reliance on importation of identical goods made by one M/s. Bihar Caustics and Chemicals Ltd. at unit value of USD 155 per flask (CIF), but the quantity involved in that case was only 100 flask ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia, and it was after negotiations with the supplier that the price has been agreed upon and sales confirmation had been received from the supplier. No doubt the discount in the present case works out to 76%. But it has to be viewed from the fact that the quantity involved is also bulk and much larger and certainly not comparable with the quantity and country from where the goods have been imported. The quantity relied upon by the department ranged from a mere 60 flasks to a maximum 200 flasks only from various countries and imported at various ports in India, whereas in the present case the quantity involved is 500 flasks. The Hon'ble Supreme Court in the case of Eicher Tractors Ltd. v. CC, Mumbai (supra) has held that a discount is a comme ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
