ORDER
C.N.B. Nair, Member (T)
The appellants imported an old and used wrap knitting machine and sought its clearance under Bill of Entry No. 328425, dated 5-7-2001 from ICD, Patparganj. The Commissioner of Customs confiscated the machine upon a finding that the machine was more than 10 years old, and machine older than 10 years required a import licence for their import. The appellants claim was that the machine was manufactured in 1991. The Commissioner’s finding was that the machine had been manufactured in 1981. Consequent to the finding, the Commissioner confiscated the machine and imposed a redemption fine of Rs. 5.5 lakhs. A penalty of Rs. 1 lakh was also imposed. The present appeal challenges the confiscation of the machine.
2. The finding in the impugned order that the machine was manufactured in 1981 is based on two pieces of evidence. One was a plate affixed on the automatic exchange speed equipment machine. This is a part of the machine and the year of manufacture showed on it is 1981. The second piece of evidence was the electric circuit shown on the electric panel. According to the panchnama, it showed the year as 1979-80.
3. Apart from the above, the Commissioner has also gone by statement dated 19-7-2001 of Proprietor. We reproduce the relevant part of the statement:
“I accept that the above said machine is very old and is not of 1991 make. I explain that I ordered for machine wrap knitting of 1991 Model but the supplier has cheated us by sending this quite old machine. This is in spite of the fact that the supplier has sent a Chartered Engineer’s certificate certifying the year of manufacture as 1991, which contradicts the actual facts. Since heavy dummurrate are being levied since 30-6-2001, we request for early decision adjudication of my case. I do not want show cause notice and personal hearing.”
4. Even though the machine was held to be of 1981 (for the purposes of determining its eligibility for import) the Commissioner accepted the declared price which was based on 1991 being the year of manufacture.
5. The contention of the appellants in this appeal is that the finding regarding year of manufacture is not sustainable at all. It is being pointed out that subsequent to the customs clearance of the machine, the appellants had written to the manufacturer of the machine Carl Mayer and the manufacturer had replied vide its letter dated 23-10-2001 confirming that the machine in question was the product of 1991. The relevant para of the letter reads as under :-
“We confirm that we manufactured KS 3 machine No. 76.46 warp knitting machine in the year 1991. The said machine was sold by us to the company Hoorens, Belgium.”
During the hearing of the case, the learned Counsel for the appellants emphasized that the certificate from the original manufacturer should be treated as conclusive. He pointed out that the machine itself bore the Sl. No. as 76046 and that was the same Sl. Number mentioned in the proforma invoice and the invoice covering the sale of the goods. With regard to the materials relied on in the impugned order, the learned Counsel submitted that the year of manufacture indicated on parts of machines should not be treated as determinative of the year of manufacture of machine itself. He has pointed out that over the years, machine get repaired with parts of different years of manufacture. With regard to the statement of the appellant manufacturer himself, it is the submission of the learned Counsel that the appellant’s statement cannot be construed as admission that he had misdeclared the year of manufacture of the machine or that he had actually purchased a machine of 1981 make; but got it described as a machine of 1991 so as to overcome the import restriction. According to the learned Counsel, the appellant was only noting the particulars as indicated in the panchnama and based on that stating that he had been cheated by the supplier. The Counsel emphasized that in any case, in the light of the manufacturers subsequent certificate that the machine was actually manufactured in 1991, the statement dated 19-7-2001 cannot have any value.
6. The learned SDR pointed out that the imported machine with Sl. No. 76.04 was not one of the machines quoted for sale by the foreign supplier. Therefore, the reliance placed by the appellant on the quotation would not be of any help. She has also drawn our attention to the Commissioner’s finding regarding the use of parts of 1981 being used in the repair of machine.
7. From a perusal of the records and consideration of the submissions made by both the sides, we find that the Customs Authorities have accepted the declaration i.e. year of manufacture as 1991 for the purpose of valuation but at the same time, have rejected it for the purpose of age of the machine. Such a contradictory position is not sustainable. If the machine was of 1981, its price also would be so much less than the price of a 1991 machine. Therefore, if the year of manufacture was actually 1981, the appellant has been charged duty on a much higher value. The original manufacturer of the machine has certified that the machine was manufactured in 1991. The transaction between the importer and the foreign supplier was on the basis that the machine is of 1991 make. In determining the age of machine, the more relevant evidence is the evidence available on the machine as well as the evidence from the manufacturer. The year of manufacture on the parts cannot be the main evidence. The appellant’s statement is not of much value in the face of the certificate of the manufacturer. Further, that statement was rendered on 19-7-2001 immediately after the inspection of the machine by the Customs and upon seeing the particulars noted about the machine and year written on the part of the machine. It is also to be noted that the appellant had not stated that he had ordered wrap knitting machine of 1981 Model. Instead, he stated that it appears that he had been cheated by his supplier.
8. In the light of the above, we set aside the finding contained in the
impugned order that the machine was of 1981 manufacture. Fine and penalty
imposed are also set aside and the appeal is allowed.