ORDER
U.L. Bhat, J. (President)
1. Appellant is absent in spite of notice of hearing. On the last date of posting the appeal was adjourned on the basis of appellant’s letter. Nevertheless, appellant has not made arrangement for representation, nor is there any request for adjournment. We have heard Shri Vipin Handa, learned SDR and perused the papers.
2. Appellant imported 595.689 M.T. of tin plate prime and presented 16 Bills of Entry for clearance as actual user under specific licence with expiry date 31-3-1987. Collector, after show cause notice and opportunity of personal hearing held that shipment was made on 13-4-1987 some days after the expiry of the licence and therefore, the import was not covered by any valid licence. The Collector also found that there was misdeclaration of value. Accordingly, the Collector ordered confiscation subject to redemption, fixed the redemption fine and directed demand of differential duty. This order is now challenged.
3. There are two questions which arise now for consideration of the appeal. One relates to the finding that the import was not covered by any valid licence and the other relates to valuation.
4. The goods were ordered from Brazil and loaded in the ship at Rio De Jarterio, the Bills of Lading bore the date 31-3-1987. There was sufficient material to show that the ship reached the Port only on 2-4-1987 and the goods were actually loaded only on 13-4-1987. Accordingly, it was held that the date of actual shipment was some days after 31-3-1987, the last date of the period of the licence and therefore the import was not covered by valid licence. We do not find any reason to interfere with the factual finding regarding the date of arrival of the ship at the Port and the date of actual loading. It is clear that there was manipulation of bill of lading. According to the appellant, the goods were entrusted to the shipper on 28-3-1987 and on account of stormy conditions the ship could not enter the Port in time. In Metraco India Ltd. v, COC – 1990 (49) E.L.T. 207. The Tribunal rejected a similar contention advanced on behalf of the importer that the date of issue of Bill should be taken as the date of shipment. The actual date of shipment being after the date of expiry of the licence, the Collector was justified in holding that the import was not covered by the valid licence. On the question of valuation, the Collector placed reliance on two instances of contemporaneous import at value higher than the value declared by the appellant. The relevant invoices bore the dates 18-3-1987 and 13-4-1987. The corresponding dates of indents were 30-1-1987 and 16-2-1987. The quantities imported are not known. The appellant had contracted with the supplier for import of 5000 M.T. of tin plate prime in March 1986 and the price was fixed at that stage itself. By the time the subject import was made, more than half the contracted quantity had already been imported and cleared. Thus there are two significant differences between the subject import and compared import. The price for the subject import was fixed nearly one year before the date of indent of the compared imports. The subject import was made on the same contract for supply of huge quantity of 5000 M.T. The Collector indicated that the contract cannot be relied upon for the reason that under the terms of the contract supply was to be made before 31-3-1987 and the actual date of shipment in this case was 13-4-1987. We do not think this approach was justified. There is nothing to indicate that the time of shipment was the essence of the contract. The difference in the contracted last date of shipment and the date of actual shipment was only a few days. Even this difference was clarified by stating that the ship could not enter the Port before 31-3-1987 on account of stormy conditions. Hence the reason urged for rejecting the contract is not sound. It must follow that there are no materials to indicate that the invoice price did not reflect the normal price in international trade for import at the time and place of import.
5. Confiscation under clause (m) of Section 111 of the Customs Act, 1962 could not have been ordered. The order of confiscation is sustainable only under clause (d) of Section 111 of the Act. The redemption fine has been fixed on the basis of the loaded value of the 16 consignments. We have held that there was no justification for loading the value. Therefore, the redemption fine is reduced to 10% of the declared price. The confirmation of the demand for differential duty is also set aside. The impugned order is modified to the extent indicated above. The appeal is accordingly dismissed.