TMI Blog2005 (3) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms. They requested for clearance of the goods on the basis of the B/E declarations. The respondent, however, directed inspection of the goods by local Chartered Engineers [M/s. Moody International (India) Pvt. Ltd.] who, after inspection of the goods, appraised the value of the goods at Rs. 42.84 lakhs (FOB). From the Inspection Report of the local Chartered Engineers, it appeared to the respondent that the declared value of the goods did not reflect the real transaction value. The goods being second-hand, it was also felt that its value could not be determined under Rules 5 to 7 of the Customs Valuation Rules (CVR, for short) and the same required to be determined under Rule 8 of the said Rules on the basis of "available objective and quantifiable data", like contemporary import price. It, further, appeared to the respondent that the imported goods were not covered under the definition of "capital goods" under the relevant EXIM Policy and attracted the restriction for import under para 2.17 of the Foreign Trade Policy 2004-2009 read with DGFT's Policy Circulars No. 16/2003, dated 29-9-2003 and 19/03, dated 11-11-2003. The respondent, therefore, took the view that the subject i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that the declared value, which was supported by the supplier's invoice and other documentary evidence produced by them, was liable to be accepted as the respondent had no case that there had been any clandestine remittance by them in excess of the invoice value or that there was mutuality of interest between the importer and the supplier. No valid reason with reference to Rule 4(2) was stated by the Commissioner to reject the declared value. It was argued that, without rejecting the declared value on valid grounds under Rule 4(2), it was not open to the Commissioner to proceed to determine the assessable value of the goods through sequential application of Rules 5 to 7 of Customs Valuation Rules. In this connection, learned counsel relied on the Supreme Court's judgments in Eicher Tractors Ltd. v. Commissioner of Customs, Mumbai - 2000 (122) E.L.T. 321 (S.C.) and Tolin Rubbers Pvt. Ltd v. CC, Cochin - 2004 (163) E.L.T. 289 (S.C.). The Tribunal's decision in the case of National Imaging Systems v. CC [Final Order No. 156/2004-NB(A), dated 25-2-2004] was also relied on in this connection. It was argued that the transaction value of the goods was the price paid or payable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve produced certain documents/details and we have perused the same. Bill of Entry No. 201363, dated 23-8-2004 (copy produced by SDR) covers a good number of old and used photocopiers, which include "old and used photocopier CANON CLC-700". This document is accompanied by a copy of Invoice No. 4321, dated 15-6-2004 issued by Seam's International (supplier). These documents show that the goods covered thereunder were imported through Kolkata port by one M/s. Atul Commodities (P) Ltd., Kolkata. The invoice indicates the CIF value (at Kolkata) of "one used CANON photocopier CLC-700" as US $ 250 whereas the Bill of Entry mentions it as US $ 640. The country of origin shown in the Bill of Entry for all items covered thereunder is U.S.A and that shown in the invoice for all items covered thereunder is U.S.A., Japan without itemwise mention of country of origin. The goods imported by the appellants are all of Japanese origin. It thus appears that the subject goods of Japanese origin have been compared with goods of American or doubtful origin. The subject goods were manufactured during 1995-2001 as per data produced by both the DR and the advocate. But no information is available as to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 1-11-2003 had clarified as under : "……….it is further clarified that the second-hand Photocopier Machines, Air Conditioners, Diesel Generating Sets etc., are also covered under the definition of "Second Hand Goods" and their import is governed by the Provisions of Para 2.17 of EXIM Policy, 2002-07. In view of this, Second Hand Photocopier Machines, Air Conditioners, Diesel Generating Sets, etc., can also not be permitted for import under EPCG Scheme under the provisions of Para 5.1 of EXIM Policy even if these are less than ten years old and even for Service Providers". The appellants' Bill of Entry indicates that the import was in terms of para 2.17 of EXIM Policy 2004-2009. They have not rebutted the Commissioner's finding that, by virtue of para 1A (4) of Foreign Trade Policy 2004-09, the DGFT's clarification in respect of para 2.17 of the previous Policy was applicable to para 2.17 of the present Policy (2004-09). It is an established position that DGFT is the authority competent to interpret/clarify provisions of Export Import Policy of the Government of India. As per that authority's clarification, second-hand photocopier was a restricted item for import during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of the local Chartered Engineer's report that the Customs authorities developed a doubt about the truth and accuracy of the value declared by the importer. But, we find, the local Chartered Engineer's report was discarded by the adjudicating authority itself, which fact casts a shadow of doubt on the reasonability of the "doubt" entertained by the Customs authorities. The next factor considered by the adjudicating authority for holding that the importer had undervalued the goods is the contemporary import price of one "old used photocopier CLC 700" imported through Kolkata port in August, 2004. As the impugned order did not mention particulars of the Bill of Entry covering the contemporary import, we directed the SDR to produce the Bill of Entry and connected invoice. We have already noted our observations (vide para 4) with regard to the documents produced by the DR. Based on those observations, we find that the Revenue has not established that only comparables were compared. It is found that the subject goods of Japanese origin manufactured in 1995-2001 were compared with goods of doubtful origin whose year of manufacture or extent of use was not known. Hence, following th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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