ORDER
K. Prakash Anand, Member (T)
1. This is an application filed against the order of the Collector of Customs, Cochin No. S.30/139/84 Ap. dated 13.2.85.
2. The appellants have imported 36 Nos. Evihrude Outboard motors declared to be of 10 H.P. The department held that the imported motors were designed to work over 10 H.P. and as such not covered by the import licence which is valid for import of motors of upto 10 H.P. Accordingly, the Collector of Customs, Cochin confiscated the goods, imposed a redemption fine of Rs. 1 lakh and imposed personal penalty of Rs. 25,000/-
3. Shri P.N. Menon, the learned consultant for the appellants points out that there has been incorrect appreciation of evidence which is on record; the importer had instructed the suppliers that the motors should be of 10 H.P. It is stated that the Department has not been able to establish the excess horse power of motors in question. It is stated that the Collector of Customs has relied on operating manuals which only show that the basic features are common for machines of both 10 H.P. and 11 H.P. The learned consultant has cited the decision of the Tribunal in the case of ‘Jairam and Sons v. Collector of Customs, Cochin, reported in 1983 ECR 1788D and claims that in that caae since the specifications of oil had not been tested by the Department before clearance, it was decided that the benefit of doubt must go to the appellants. Shri Menon has also stated that two motors, out of the consignment imported, are still in the possession Of Customs and they should be asked to have them tested even now for the present rating. He states that the appellants would be prepared to accept the result of the test. Finally, the learned consultant states that the goods imported were not banned items and even if it is held that they are of 11 H.P. rating, the fine and penalty imposed are unwarranted and excessive.
4. Shri K.K. Bhatia, the learned S.D.R. has reiterated the facts and the views as contained in the order appealed against. In particular he points out that the catalogue pertaining to the products imported is for 11 H.P. motors; besides as a result of investigation conducted, the Department was able to seize a copy of message sent by the importers to the suppliers to re-calibrate the motors to 10 H.P. Shri Bhatia firmly opposes the request that the remaining two motors, presently with the Customs Department, should be subjected to a test as regards horse power rating and points out that the Department’s case does not rest on the existing rating of the motors imported. He states that the investigation itself indicated that the motors imported are of 11 H.P. rating. Though they might have been recalibrated to 10 H.P. rating, they can, by a small variation, be upgraded to total 11 H.P. rating for which the motors are designed. The fact that the motors are basically of 11 H.P. rating is established by the Technical Literature relating to the items imported which is a final proof regarding the rating of the goods, not disputed by the appellants themselves.
5. We have carefully considered the facts of the case and the submissions made before us. The appellants’ case rests only on the fact that the performance rating of the impugned goods is 10 H.P. The Department’s case is that the goods are actually designed for 11 H.P. rating. It is on the basis of their claim that the performance rating is 10 H.P. that the appellants have requested that the two motors in the possession of Customs Department should be subjected to a test. On the other hand, it has been argued convincingly by the Department that we have to go by what the product is and the catalogue furnished by the appellants themselves is final and conclusive evidence in this respect. This catalogue, not disputed by the appellants themselves shows that the products imported are designed for 11 H.P. rating. The fact that they are being recalibrated to 10 H.P. rating which, subsequently, at the will of the importer, can again be stepped up to 11 H.P. rating, does not affect the identity of the goods as designed for over 10 H.P. rating. Since these facts remain unrebutted by the appellants, there is no escape but to uphold the view taken by the Department.
6. We have seen the case law cited by the appellants namely,CEGAT’s decision in the case of ‘Jairam and Sons v. Collector of Customs, Cochin’ (1983 ECR 1788D). In this case, the Tribunal held that the Department having failed to carry out the test of the samples of the imported goods viz. diesel oil, should not have ignored the supplier’s certificate to establish the character of the oil and the benefit of doubt should have been given to the appellant. We are of the view that the facts of the case cited are quite different and the ratio of the decision is not applicable to this case. Whereas in the case of ‘Jairam and Sons’, the specifications of oil were not available as the Department had allowed clearance without a test and the Tribunal therefore held that the benefit of doubt should be given to the appellant on the basis of the certificate of suppliers furnished by the importers in this particular case, there seems to be hardly any doubt or dispute as regards the identity of the goods or even the specifications. The catalogue pertaining to the goods imported is available and not disputed. It clearly shows that the goods are designed for 11 H.P. rating. The appellant’s claim that these goods have been recalibrated for 10 H.P. performance. We do not feel that this affects the essential identity of the goods which are designed for 11 H.P. rating. In the view that we are taking, therefore, there is no case for remanding the matter back for decision on the basis of a test of the motors still in the custody of the Department. This request is rejected.
7. We have also carefully considered the submission that the fine and penalty are excessive. We fined that the appellants were well aware of the fact that the goods imported were designed for 11 H.P. rating. They had instructed the suppliers to recalibrate the goods but they concealed the fact from the Department. This is an evidence of their mala-fides. Confiscation of the goods as well as imposition of penalty are therefore, justified and we do not think that the quantum is excessive.
8. The appeal is accordingly dismissed.