ORDER
P.G. Chacko, Member (J)
1. The appellants had imported from Singapore what was declared in the Bill of Entry (No. 244637 dated 1-11-1999) as “VGA CARD SIS 6326 CHIPSET”. The declared unit price was US $ 10.6. Upon examination of the goods, the Customs authorities found “AGP” markings on the cartons. It appeared to the authorities that “AGP” CARDS were misdeclared as “VGA” CARDS and also that the price of the goods was misdeclared. From the results of subsequent investigations, it appeared to the department that similar imports had been made in the past also. Shri V. Athi Narayanan, Regional Manager (Chennai) of the Company admitted misdeclaration of value and offered to pay the differential duty. The department gathered particulars of certain contemporaneous imports of AGP CARDS and, on that basis, proposed to enhance the value of the goods under Rule 5 of the Customs (Valuation) Rules, 1988. They also proposed to confiscate the goods (which had been seized under a Mahazar but subsequently released provisionally to the importer) under Section 111(m) of the Customs Act. Penalty was also proposed on the party under Section 114A of the Act. The department also wanted to confiscate the goods covered under past imports as also to demand duty thereon. Accordingly, a Show-Cause Notice was issued.
2. The proposals in the Notice were contested by the appellants by submitting that they had not misdeclared description or value of the goods in Bill of Entry dated 1-11-1999 and therefore, in respect of such goods, the allegations in the Show Cause Notice were untenable. The proposal to confiscate, and demand duty on, the past imports was also opposed on the ground that such action was not liable to be taken in respect of past imports on the basis of materials relevant to current imports. In adjudication of the dispute, Id. Commissioner of Customs passed the following order:
(i) I order for enhancement of value of the goods covered under Bill of Entry No. 244637 dated 1-11-99 to Rs. 14,98,217/- under Rule 5 of the Customs (Valuation) Rules, 1988.
(ii) I order confiscation of goods valued at Rs. 14,98,217/- covered under Bill of Entry No. 244637 dated 1-11-1999 under Section 111(m) of the Customs Act, 1962. The goods were released provisionally and are not available for confiscation. However, I impose a redemption fine of Rs. 2,00,000/- (Rupees two lakhs only) in lieu of confiscation under Section 125 of the Customs Act, 1962.
(iii) I hold that the goods cleared in the past valued at Rs. 57,08,496/- are liable to confiscation under Section 111(m) of the Customs Act, 1962. The goods are not available for confiscation. However, I impose a redemption fine of Rs. 4,00,000/- (Rupees four lakhs only) in lieu of confiscation under Section 125 of the Customs Act, 1962.
(iv) I confirm the demand for Rs. 12,96,473/- on M/s. Visualan Technologies P. Ltd., Chennai, under proviso to Section 28(1) of the Customs Act, 1962 along with interest under Section 28AB of the Customs Act, 1962.
(v) I impose a penalty of Rs. 12,96,473/- on M/s. Visualan Technologies P. Ltd., Chennai under Section 114A of the Customs Act, 1962.
(vi) I order adjustment of Rs. 6,00,000/- paid by M/s. Visualan Technologies P. Ltd., Chennai towards the duty demand and a PD Bond and bank guarantee shall be enforced to realise the duty, fine and penalty.
3. In the present appeal, which is directed against the above order of the Commissioner, ld. Counsel submits that AGP CARD is a type of VGA CARD which is also called DISPLAY CARD and, therefore, there is no misdeclaration of the goods by the importer. In this connection, reference is also made to a certificate issued by M/s. Bamy Allied Services, Chartered Engineers on 9-11-03. This certificate, inter alia, states that AGP is a type of BUS which may be incorporated in VGA CARD and also that VGA CARD is a nomenclature for DISPLAY CARD in information technology. It is particularly stated that “SIS 6326” is understood as “AGP BUS VGA CARD”. This certificate dated 9-11-2003 was not available to ld. Commissioner when he passed the impugned order. A set of invoices also has been produced by ld. Counsel today, which were issued by the same supplier during the period September to November 1999. One of these invoices indicates unit price of US $ 8.6 for “VGA CARD SIS 6326 CHIPSET;” another one indicates unit price of US $ 10 in respect of “SIS 6326 AGP 4MP TV OP;” and the third one indicates unit price of US $ 10.7 for “VGA CARD SIS 6326 CHIP.” It is claimed by the Counsel that these invoices were produced before Id. Commissioner but not considered. Ld. Counsel has also referred to the invoice dated 22-8-1999 of the same supplier, relied on by the department. This invoice indicates a unit price of US $ 19.5 for “SIS 6326 AGP VGA CARD for MP with TV” and a different price of US $ 24 per piece in respect of SIS 6326 AGP VGA CARD 8 MP TV. It is submitted by Id. Counsel that the relevant Bill of Entry was not provided by the Department and, therefore, the appellants were not in a position to find out whether the prices mentioned in the above invoice were accepted by the Department. Hence, according to the ld. Counsel, the goods covered under Bill of Entry dated 1-11-1999 were not correctly valued by the adjudicating authority. Ld. Commissioner ought to have accepted the price agreed to between the assessee and the supplier of goods. There is no valid reason for rejecting this transaction value. In any case, the decision rendered by the Commissioner in respect of past imports is bad in law. Ld. SDR reiterates the findings of the Commissioner. It is submitted that all the relevant particulars of contemporaneous imports were made available through a worksheet to the appellants and, therefore, there can be no grievance that natural justice was denied to them.
4. After giving careful consideration to the submissions, we must, at the outset, reject the action proposed in the Show Cause Notice and taken by the Commissioner against the appellants in respect of past imports on the basis of materials contemporaneous to the import covered under Bill of Entry dated 1-11-1999. Accordingly, the demand of duty on the goods covered under the past imports and the order of confiscation of such goods are set aside.
5. As regards the goods covered under Bill of Entry dated 1-11-1999, we find that the plea of the importer based on IT literature requires to be reconsidered by the adjudicating authority. It is their case that AGP is BUS incorporated in VGA CARD and, therefore, the expressions “AGP CARD” and “VGA CARD” can be used interchangeably. Ld. Counsel has made an endeavour to buttress this argument with reference to “SIS 6326”. This argument, it appears, has not been properly advanced by the party before the Commissioner and hence could not be examined properly. The Chartered Engineer’s Certificate is an important piece of evidence which can, perhaps, go to support the appellants’ plea that the goods imported by them was not misdeclared. This document was not available to the Commissioner at the time of passing the impugned order. It further appears that any assessed Bill of Entry covering contemporaneous import of identical goods was not supplied to the party. We are of the view that these infirmities require to be cured in de novo adjudication of the case relating to the Bill of Entry dated 1-11-1999. Accordingly, the impugned order is set aside and the case is remanded to the Commissioner for de novo adjudication of the dispute relating to VGA/AGP CARDS covered under Bill of Entry No. 244637 dated 1-11-1999. The appeal stands allowed by way of remand. Ordered accordingly.
(Order dictated and pronounced in open court)