ORDER
U.L. Bhat, J. (President)
1. The common appellant entered into an agreement dated 28-11-1978 with Malaysian supplier for supply of Dried Copra at US $ 570 PMT C & F. His application for licence having been rejected, he approached the High Court of Delhi for relief. The High Court on 24-2-1984 directed issue of a licence. On 13-3-1985 the licensing authority issued a licence subject to three conditions, namely, that there, shall be no amendment in price and other terms of the agreement, that the contract should be valid for shipment of goods on the date of issue of licence and the licence should be subject to the provisions given in Paragraph 73(3) of the Import and Export Policy, 1984-85 Volume I. Import was effected in six different consignments in October, 1987 purportedly at the contract price US $ 200 PMT CIF. The invoice price was accepted and duty assessed. Appellant paid the duty and cleared the goods. Thereafter they filed refund claim in respect of the consignments contending that the ruling price in international trade of Dried Copra at the time of import was only US $ 200 PMT CIF and under the Customs Valuation Rules, 1963 which was in force at the relevant time, transaction value did not have much relevance and assessable value should have been based on the value at which such comparable goods are produced, manufactured by the same person are ordinarily sold or offered by us in India under competitive competition. The Assistant Collector rejected the claims on the ground that there is no evidence of comparable values and the appellant had not objected to the valuation at the time of clearance. The assessee’s appeal was dismissed by the Collector (Appeals) on the ground that no objection was raised at the time of assessment, that the assessment was done in accordance with the order of the High Court and therefore, Section 14 of the Customs Act, 1962 was not operative in these cases. Both the authorities declined to place reliance on the “Public Ledger” produced by the appellant to show that the ruling price at the relevant time was US $ 200 PMT CIF. The order passed by Collector (Appeals) is now under challenge.
2. We are handicapped in these appeals inasmuch as the appellant did not take the trouble of producing before us a copy of the order passed by the High Court but the licence issued makes it clear that it was conditional. One of the conditions was that there should be no amendment in price and other terms of the contract. It is the case of the appellant that the contract price US $ 570 PMT, even though, the ruling price was only US $ 200 PMT. This appears so amazing and contrary to commonsense that the lower authority should have investigated this aspect of the matter. If investigation had revealed, as a matter of the fact, that the appellant did not pay the price of US $ 570 PMT but paid a lesser price that should amount to violation of licence condition. The question of refund would not arise, since status quo regarding confiscation and redemption cannot be restored. If, on the other hand, the appellant had actually paid the price at the rate of US $ 570 PMT CIF, the import will be valid inasmuch as the condition of the licence had been satisfied. But, in such a case, valuation for the purpose of assessment would have to be governed by the Customs Valuation Rules, 1963 which were in force at that time. The Collector (Appeals) was in error in holding that assessable value was to be fixed in accordance with the order passed by the High Court and the provisions of Customs Law would not be applicable. Though a copy of the order of the High Court is not before us, it is undisputed that the writ jurisdiction of the High Court was invoked only in the context of the rejction of the request for licence. The High Court directed that licence to be issued. That order has no bearing on the assessable value of the goods. If the licensing authority had not imposed a condition that the price agreed to in the contract should not be amended, in the ordinary course, appellant would have paid whatever be the prevailing price and that would be the basis for determining the assessable value also. The appellant states that he had paid at the rate of US $ 570 PMT CIF, even though, according to him, the ruling price was less than 40% thereof. This certainly would call for investigation. If they had paid less than the ruling price, value would be governed by the Customs Valuation Rules and the provisions of Section 14 of the Act, both of which referred to the ordinary price. Duty can be collected only on the price at which such or like goods are ordinarily sold or offered for sale at the time of delivery of place as the case may be in the course of the international trade. If the appellant was unable to produce any instances of comparable imports, the Customs House could have traced out such prices from the canalising agency which was functioning at that time.
3. The other ground urged against the appellant, namely, no objection was raised at the time of assessment is neither here nor there since refund is claimed under Section 27 of the Customs Act, 1962. The view taken that Section 14 of the Act was inoperative in these cases, is not in accordance with the law.
4. For the reasons indicated above, we set aside the impugned order and remand the case to the Jurisdictional Commissioner for de novo disposal for the refund claims in accordance with law and in the light of the observations contained in this order. Appeals are accordingly allowed.
