ORDER
I.J. Rao, Member (T)
1. We heard these three appeals together as the facts and issues involved in them were similar and they were argued together by Sh. S.D. Nankani, Ld. Advocate for all the three appellants. The appeals involved three importations of what was described in the Bills of Entry as “Acrylic Plastic Sheet Off cuts” imported by the 3 appellants on various dates. The 3 invoices covering the imports mentioned the value as US $ 375 per M.T. CIF. The customs on examining the consignments found that the importations consisted of offcuts and sheets of Acrylic Plastic.
2. The customs department were of the opinion that the goods were undervalued. They therefore issued show cause notices to the parties threatening confiscation of the goods and increase in the value to US $ 900 per M.T. After the due process the Collector of Customs adjudicating the matter confiscated the goods but ordered their release on payment of fines of Rs. 15,000,15,000 again and Rs. 20,000. The Collector further ordered that the value of the goods should be increased to US $ 720 per M.T. CIF.
3. The appellants filed appeals to the Central Board of Excise & Customs who by the impugned order confirmed the valuation but set aside the fines in lieu of confiscation subject to the condition that all the three consignments should be reduced to widths upto 3 ft. (it appears that “offcuts” on those pieces which have width less than 3 ft.). Hence the present appeals.
4. We heard Sh. S.D. Nankani, Ld. Consultant for the appellants. He submitted that the entire case of the customs was based upon a single document purported to be a copy of the order confirmation which was seized by the customs from the office of the indenting agent. Vehemently arguing that this document was totally unreliable as evidence of value, Sh. Nankani submitted that there were a number of blanks in this document, that it bore a date much earlier to the date of invoice, that the value, if it was shown in this document, was totally erased, and that it did not relate to the present consignment. The Ld. Counsel depended upon other importations which according to him had nexus to the time of the importation of the goods involved in these appeals. He cited another order of the Asstt. Collector wherein the value of offcuts was mentioned as US $ 350 per M.T. He submitted that the department did not have any evidence at all to allege under-valuation. Pointing out that the Board disposed of all arguments “value” by a non-speaking and vague observations. He submitted that there was no under-valuation. He emphasised that even the slender evidence cited to support that allegation of the under-valuation in respect of offcuts was not there in respect of sheets.
5. Sh. Durghayya, Ld. JDR opposing the arguments submitted that the Bill of Entry described the goods only as offcuts. He further submitted that the “Number IX 875” appeared also in the invoice issued by the exporters to cover the present importation and pointed out that this number appeared in the order confirmation document on which the customs relied. He argued that the appellants imported mixed lots under the guise of offcuts. Referring to the copy of order confirmation Shri Durghayya submitted that in the impugned order the Collector gave detailed and cogent reasons for relying on the same. The Ld. JDR further submitted that this document could not, therefore, be dismissed as an irrelevant or useless piece of paper. Referring to the supplier’s letter dated 11th Nov., 1980 he submitted that this was apost-importation document and should not be considered. Recalling that Sh. Nankani, Ld. Advocate during his argument cited an order [Order No. 247/81 dated. 6.5.1981 passed by the Asstt. Collector (Customs) Group-D]. Sh. Durghayya submitted that this order was passed in a different context and did not seek to fix the value of goods similar to the imported goods. Referring to the documents relied upon by the appellants (pages 145-193 of the paper book in Appeal No. 690), Sh. Durghayya submitted that all these documents related to offcuts only whereas in the present matters valuation of offcuts and sheets is involved. Therefore these documents are irrelevant.
6. Sh. Nankani in his rejoinder submitted that when reference was made to “mixed lots” it could only means that the lots consisted of sheets and offcuts of various colours, sizes and measurements. Referring to the supplier’s letter dated Nov. 1980 Sh. Nankani submitted that this letter was presented personally by the writer and it was issued when show cause notice made allegations against the appellants.
7. We have considered the arguments of both sides. A perusal of the documents placed before us and of the impugned order shows that the department relied upon the copy of the order confirmation. We perused this document, copy of which was filed (Page 135 paper book, appeal No. 690). As submitted by Sh. Durghayya one of the headings of these documents is “our order No. IX 875”. The value which was alleged to be recorded in this document above the words “CIF Bombay” is not visible. It is not possible to make out any figures from this document. We also note that this document was dated Feb. 22, 1980 addressed to ACRO-PEARL AGENCIES, Bombay. There is no signature in this document nor is there anything to connect the same with the present importation. How the Collector held that this document mentioned value of US $ 900 per M.T. on offcuts is not known. The order No. “IX-875” appearing in this document and also the invoice does create suspicion, but on the face of it this document does not inspire confidence as a piece of evidence to be relied on while deciding the value of imported goods. The Collector has recorded, after some discussion of the appellants’ reply that “I do not see any reason, why I should ignore this only because order confirmation has not been signed. There is no reason why this should have come to the indenting agent from the exporters and this should be preserved by former”. We do not agree with this observation in view of what we have stated earlier. We hold this document alone could not form a basis for holding that the appellants under-valued the importations.
8. The appellants filed various documents to support their pleas. We note the arguments of the Ld. JDR that these should not be considered. But we do not agree with him because when threatened with action, the appellants would be entitled to bringforth evidence in their defence. The department has given ample scope to rebut this evidence and we do not see any reason why we should dismiss this evidence at the threshold.
9. The invoice of M/s. Salemohammed & Co. (Page 139) mentions the value of offcuts as $ 375 per M.T. This invoice dated April 30, 1980 was issued by Claude P. Bamberger, U.S.A. Another invoice dated March 14, 1980 from the same exporter to M/s. Rainbow Plastic Industries mentions the price as US $ 300. On page 143 the appellants gave details of two Bills of Entry No. 1185/44 dated 23.9.80 and 1055/49 dated 7th July, ’81 wherein Acrylic Plastic offcuts were imported as US $ 350 per M.T. The Commercial information given by ESPEE ENTERPRISES pages 145 to 193 was also cited to show the prices US $ 350 per M.T. but this information is not evident from the sheets themselves as they referred to the quantity and value and not unit value.
10. We have perused the order-in-original No. NS-247/81 dated 6.5.1981 passed by the Asstt. Collector. This order, inter alia, makes an observation that US $ 300 per M.T. may be accepted as the price of A.P. Scrap. The date of importation is not known. Ignoring the invoices, for the reason that importation is not proved, we are left with one Bill of Entry No. 1185/44 dated 23.9.80 wherein invoice was dated 14.8.80 to arrive at a conclusion on the correctness of the value for offcuts. This Bill of Entry cited by the Appellants mentions the price of A.P. Offcuts as 350 US $ per M.T. The invoice in the present importation having been dated 6.5.80, nexus to the time of import can be taken as existent.
11. In view of these circumstances, we hold that in so far as offcuts are concerned, the value declared by the appellants should be accepted and consequential relief given.
12. That brings us to the question of the value of sheets which admittedly were part of the consignments. The detailed examination of the consignment by the customs shows the actual weight of sheets and offcuts separately, in each of the consignments. In the 3 consignments involved in these appeals offcuts and sheets were imported in various proportions. It is the claim of the Ld. Advocate for the appellants that there is no evidence with the customs on the question of the valuation of the sheets. Even the so-called confirmation order, according to the Ld. Advocate, referred to only offcuts and not sheets. A perusal of the Collector’s order shows that he has fixed the value of US $ 720 per M.T. for the entire consignment. We have, by our earlier finding, modified his order in respect of offcuts by ordering that their value be taken to be as declared. In respect of sheets we note that there is no evidence either way. We are not impressed by the argument of the appellants that the sheets and offcuts will be melted to be manufactured into plastic articles. It is not imaginable that sheets wider than 3 ft. would, be imported all the way from the U.S. only to be melted. It is obvious that their value would be considerably higher than the value of offcuts. We however take note that according to the Board’s order-in-appeal the appellants have reduced the sheets, into less than 3 ft. so that, it appears, they can only be melted and not used otherwise. All the same what is in issue is the value of the sheets at the time of importation. The appellants claim that the value of the sheets is $ 375 per M.T. whereas the Collector fixed it at $ 720 per M.T. Taking all the circumstances into consideration and applying our best judgment we order that the sheets should be valued at US $ 550 per M.T. We are conscious that this is an ad hoc decision but the value of practical approach and the absence of any material, except the circumstantial evidence, leads us to such a conclusion.
13. The goods involved in these three consignments should be re-assessed accordingly. Consequential relief if due should be granted to the appellants.