P.C. Jain, Member (T)
1. Briefly stated the facts of this case are as follows:
2. The appellants herein filed a Bill of Entry on 12.5.1993 for clearance of consignment of goods declared by them as “Brackets” (outboard motor parts) under chapter heading 84.09. The assessable value of goods was shown in the Bill of Entry at Rs. 44,606/- and the total duty calculated on the goods was shown as Rs. 30,666/-
3. On examination by the Shed Examiner it was noticed that the item imported is actually “Low Noise Block (LNB) converters” and not “Brackets” as declared by the appellants. The goods were therefore retained for verification as to the description of the goods. One piece of the sample was shown to the representative of Department of Electronics, stationed at the Air Cargo Unit for opinion. One Shri S.K. Aggarwal, Scientist/Engineer opined that the goods imported appeared to be ‘LNB’ suitable for Satellite Receiving Dish. The Department also took the opinion of Shyam Antenna Electronic (P) Ltd. They certified that ‘Sample is that of LNB and the Shape and size is identical to LNBs of Brand Name Gardner as imported by them for the manufacture of their End product C-Band Direct Reception Set.
4. In view of the foregoing evidence the Deptt. made Market enquiry regarding the valuation of the goods and assessed market value at Rs. 10 Lakhs and the C/IF value of Rs. 6,55,000/-.
5. On adjudication the Additional Collector of Customs confiscated the goods under Section 111(m). He also imposed a fine of Rs. 6.50 Lakhs in lieu of confiscation of goods. He also imposed a penalty of Rs. 1 lakh on the appellants.
6. On appeal before the Collector (Appeals) Fine in lieu of confiscation was reduced to Rs. 4 Lakh; the said authority did not interfere with the order passed by the1 Additional Collector. The Collector (Appeals) also did not accept the prayer for re-export of the goods. It also did not interfere with the quantum of penalty.
7. Hence this appeal before the Tribunal.
8. Ld. Advocate Shri J.S. Agarwal submits that the opinion of Shri S.K. Agarwal, Scientist in DOE is of extremely doubtful nature in as much as the report as well as further informations on the said report directing the authorities to raid the premises of the appellants are in the same Typewriting. He also submits that the opinion of Shri S.K. Agarwal is also of tentative nature since he has used the expression “appears to be”. He further, submits that the Certificate of Shyam Antenna does not bear any date and therefore it loses in evidential value and value is also very much reduced. He has drawn attention to the copy of FAX at page 24 of the Appeal papers, which is a photocopy of the FAX from the supplier to the appellants herein, which reiterated that the goods supplied by them are parts of outboard motor only.
9. Ld. Advocate has further submitted that the valuation adopted for the purpose of duty, fine and penalty by the authorities is without disclosing any bases although it is stated that it is on the basis of the market enquiry. But the report of such market enquiry has not been disclosed. He further submits that no evidence of contemporaneous imports of the goods in question has been brought on record. The appellants imported only parts of outboard motor and these were supplied by the supplier. If anything else has been sent the appellants are not responsible for the same and in these circumstances he has prayed for the re-export of the goods which is incorrectly rejected by the lower authority. In any case he submits the valuation adopted is totally incorrect and arbitrary. He therefore, prays for setting aside the impugned order along with the appeal.
10. Ld. JDR Shri R.S. Sangia submits that the appellants have not produced the original of the FAX referred to at page 24 of the appeal papers as mentioned above by them; such an undertaking to produce the same was given by the appellants.
11. As regards the identity of the goods he submits that a representative from Shyam Antenna was duly cross-examined and he confirmed this certificate relied upon by the adjudicating authority. No request for cross-examination of Shri S.K. Agarwal was made by the appellants. He therefore, submits that the identity of the imported goods cannot be disputed in view of the aforesaid facts and circumstances. In this connection Ld. JDR also pointed out that the appellants themselves have made an enquiry of the valuation of the goods in the market and stated that the value of LNB per piece was around Rs. 2000/-, 3 months back and it is now selling at Rs. 1800/- per piece as against the price of over Rs. 3,000/- adopted by the authority. This enquiry, submits Ld. JDR, is indicative of the identity of the goods imported by the appellants.
12. On the question of request of re-export Ld. JDR submits that the appellants have failed to produce the original copy of the FAX purportedly from their suppliers. Obviously they are concealing the original. This indicates that the photocopy of the FAX produced is not a genuine one. Apart from this direction, submits the JDR, the appellants have not placed the indent on, and the confirmation from, the supplier. In these circumstances request for re-export also should not be accepted. As regards valuation Ld. JDR submits that it is based on market enquiry. The transaction value has to be necessarily discarded because goods found are totally different from the goods purported to have been imported. Therefore, the market enquiry was the only basis in as much as no other evidence was immediately available with the authorities. He therefore, prays for dismissing the appeal.
13. We have carefully considered the facts and circumstances advanced from both sides. We observe that identity of the goods has been established beyond doubt by the adjudicating authority. Minor points raised by the Ld. Advocate regarding the opinion of Shri S.K. Agarwal, Scientist in DOE will not vitiate the said opinion, inasmuch as the said scientist was located in the Air Cargo Unit itself and therefore, there was nothing wrong in using the same typewriter, even if it is so, while the opinion of Shri S.K. Agarwal was recorded and the further endorsement was made by the Asstt. Collector. In any case identity of the case has been established by the certificate of Shyam Antenna and the confirmation of the same by the Representative of the Shyam Antenna in the Cross examination conducted by the appellants in the course of adjudication proceedings.
14. In view of the identity of the goods being different from what they were held out to have been imported, the transaction value has been rightly disregarded, but nevertheless we are of the view that the authorities have to disclose the market enquiry on the basis of which the valuation of the imported goods have been arrived at. This has not been done by the Original Authority. Therefore, we are of the view, that the matter regarding the valuation of the goods is required to be remanded to the original authority and decided de novo, after disclosing of the market enquiry which forms the basis of the valuation of the goods. In case the market enquiry report is not available in writing and it was basically on oral market enquiry, then department would be at liberty to get evidence regarding the valuation of the goods at the time of import and that evidence must be disclosed to the appellants so that he can make a proper defence to meet the allegations of the Revenue on the valuation of the goods.
15. As regards the prayer for re-export we are inclined to agree with the submissions of the Ld. JDR that the appellants have failed to disclose or show original copy of the FAX. They have also failed to place on record the purchase order for the goods and the proforma invoice for confirmation from the suppliers to prove their innocence to the effect that what they really asked for is the motor parts and not LNBs. Accordingly we do not agree with the prayer for the reexport of the goods made by the Ld. Advocate for the appellants.
16. At this stage Ld. Advocate has pointed out that no proper classification of the goods has been made by the Authorities. The question of classification, if the appellants want to raise this dispute, will be open before the Adjudicating Authority in de novo proceedings.
17. In view of the foregoing discussion impugned order is set aside to the extent of valuation of the goods and Adjudicating Authority is directed to decide the case de novo in terms of the aforesaid directions.
18. Appeal disposed of in the above manner.
Pronounced and dictated in the open court.