ORDER
K.S. Venkataramani, Member (T)
1. The Appellants imported a consignment of data cartridges for computers for the clearance of which they filed a Bill of Entry on 5-2-1996 in the Kandla Custom House. On examination of the goods it was noticed that there were two different types of data cartridges for computers namely Sony QD-6150N and Sony QD-6525N. It was also found that the two types of cartridges have different capacities. QD-6150N had 150MB capacity and characteristic wise 189 meters. The other model QD-6525N had a capacity of 525MB and 310.9 meters. The Custom House noted that the invoice dated 7-12-1995 produced for the goods did not show separately the two different models and no separate values for these types of cartridges were shown. A purchase order was produced which showed respective prices for both the types of cartridges as US $ 4 per piece for QD-6150N and US $ 5 per piece for QD-6525N. The Custom House was of the view that the goods were under valued and further investigations were made. It was noticed that the same importer had earlier imported similar consignment through Bombay Custom House for which he declared value was US $ 4 per piece for models QD-6150N which was enhanced to US $ 7 per piece. Market enquiry revealed similar cartridges were sold at price of Rs. 520/- for QD-6150N and Rs. 900/- for QD-6525N. Similar types of data cartridges of same model imported were assessed to duty vide Bill of Entry dated 17-6-1995 at US $ 7 per piece as per an adjudication order dated 17-5-1997 of the Deputy Commissioner of Air Cargo Complex, Mumbai.
2. Proceedings were initiated by issue of show cause notice dated 24-9-1996 for enhancing the assessable value under Rule 5 of the Customs Valuation Rule 1988 from the declared price of US $ 4 to US $ 7 in the case of QD-6150N based on the Appellant’s own previous import and in respect of QD-6525N the value declared was proportionately increased from US $ 5 to US $ 10 under Rule 8 of the Valuation Rules because of the higher capacity and length of the cartridges. The goods were proposed to be confiscated for mis-declaration under Section 111(m) of the Customs Act, 1962 and a penalty was proposed to be imposed on the Appellants under Section 112 of the Act. On consideration of the reply of the Appellants and hearing them in the matter the Commissioner of Customs, New Kandla passed the impugned order dated 31-1-1997 enhancing the value of the goods as proposed in the show cause notice. The goods were also confiscated and a fine in lieu of confiscation of Rs. 10,00,000/- was levied under Section 125 of the Customs Act, 1962. The Commissioner also imposed a penalty of Rs. 5,00,000/- on the Appellants.
3. Shri S. Kantawala, the learned Counsel for the Appellants submitted that the Commissioner has not considered the evidence of comparable value of the goods led by the Appellant before the Commissioner and he also referred to the further evidence that the Appellants have been able to obtain as contained in the miscellaneous application for the purpose. The Commissioner has referred to and relied upon the local market enquiry which has not been revealed to the Appellants and it is also contrary to decision of the Tribunal in the case of Kumar Associates v. Collector -1993 (65) E.L.T. 500 wherein it was held that the value is not determinable on the basis of post importation market price of goods in India. On the other hand the Appellants have been able to obtain the local invoice dated 19-5-1997 and 21-5-1997 of the manufacturer Sony authorised local selling agent for sale and supply of the very same cartridges of Sony make which also shows that the local price adopted by the Commissioner for these cartridges is much higher. However, some of these pieces of evidence were admittedly not produced before the Commissioner as they were not in the Appellants possession at the time of declaration. The learned Counsel further submitted that in respect of Model QD-6525N the valuation is entirely based on an application of Rule 8 of the Valuation Rule and there was no evidence of contemporary imports at the price of US $ 10 adopted by the Commissioner. It was pleaded that the Calcutta High Court has held in the case of Sushil Kumar Kayan -1993 (67) E.L.T. 537 that just because of some importers have previously accepted an enhanced valuation it cannot form the basis of determination of assessable value of the present import which has to be done only under the Valuation Rule.
4. Shri K.L. Ramteke the ld. DR reiterated the reasoning in the impugned order and pointed out that the Commissioner has relied upon some import of the identical goods by the same Appellants in respect of Model QD-6150N and has applied Rule 5 of the Valuation Rule for identical goods and in respect of Model QD-6525N the valuation has been supported by the higher capacity specification of that Model compared to QD-6150 and also the fact that investigations made by the officers of the Kandla Customs establish that the assessable value of cartridges QD-6525N Sony make were assessed as US $ 10 per piece on the basis of their characteristic, data storage capacity and length of the tape in the cartridge.
5. We have carefully considered these submissions. So far as the model QD-6150N is concerned we find that the determination of the price at US $ 7 per piece is based on the Appellants own previous import wherein also the same value as presently declared US $ 4 per piece had been enhanced to US $ 7 per piece. Apart from that the same valuation has been determined for the same goods in another adjudication order in Bill of Entry dated 17-6-1995 by the Collector of Customs, Air Cargo Complex Mumbai. There is reasonable proximity also in these imports and the goods are identical and therefore we hold that the determination of value of Sony QD-6150N data cartridges is well founded in the impugned order and does not call for any disturbance. The Calcutta High Court decision relied upon by the learned Counsel was one where the Customs House sought to rely on not an import by the same importer, which is the case here, and as seen above that was not the only basis in this case. Therefore the determination of the value of QD-6150N at US $ 7 per piece is upheld.
6. As regards the other Model QD-6525N, the valuation has been determined under Rule 8 by relying among other things on a market enquiry, the details of which are admittedly not disclosed to the Appellants. As against this the Appellants have now produced before us certain invoices of the local agents of the Sony showing sales in the market of the same model. Apart from this since these are branded goods being imported, the Custom House should have, by now, stored data of such imports which can also be looked into to see whether there have keen any contemporaneous import and whether any price-list for the model in question has since become available from the Japanese manufacturer. The impugned order therefore calls for a remand in respect of the valuation of the data cartridge Sony QD-6525N and we order accordingly. The appeal is therefore allowed by way of partial remand and while re-determining the value of the cartridge in question, the Commissioner may consider the further pieces of evidence on valuation which the Appellants have been able to obtain meanwhile. The issues of fine in lieu of confiscation as well as penalty on the Appellants and the quantum thereof can also be re-determined after the valuation issue is gone into afresh and dependent on the outcome thereof.
7. It is submitted that the goods are still to be cleared from customs and in such a situation the Commissioner may re-adjudicate the matter as directed above as expeditiously as possible.