{"id":116731,"date":"1985-10-04T00:00:00","date_gmt":"1985-10-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/united-veneers-p-ltd-and-ors-vs-collector-of-customs-on-4-october-1985"},"modified":"2019-03-22T21:55:43","modified_gmt":"2019-03-22T16:25:43","slug":"united-veneers-p-ltd-and-ors-vs-collector-of-customs-on-4-october-1985","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/united-veneers-p-ltd-and-ors-vs-collector-of-customs-on-4-october-1985","title":{"rendered":"United Veneers (P) Ltd. And Ors. vs Collector Of Customs on 4 October, 1985"},"content":{"rendered":"
Customs, Excise and Gold Tribunal – Tamil Nadu<\/div>\n
United Veneers (P) Ltd. And Ors. vs Collector Of Customs on 4 October, 1985<\/div>\n
Equivalent citations: 1986 (6) ECR 464 Tri Chennai, 1986 (26) ELT 322 Tri Chennai<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 S. Kalyanam, Member (J)<\/p>\n
1. The appeals are directed against the order of the Collector of Customs, Cochin, referred to supra, imposing a redemption fine of Rs. 25,000\/- under Section 125 in lieu of confiscation of rosewood veneers and also a penalty of Rs. 5,000\/- under Section 114 of the Customs Act, 1962, hereinafter referred to as the Act.\n<\/p>\n
2.   A   consignment   of   10   crates   of    rosewood   veneers   stacked   in Ernakulam wharf for export under shipping bill No. 1699 dated 22.6.84 were seized by the authorities in pursuance of a search conducted in the business premises of M\/s. United Veneers (P) Ltd., hereinafter referred to as ‘appellants’ on a reasonable belief that there was violation of the provisions of the Customs Act and Foreign Exchange Regulation Act. In a statement given before the Superintendent of Customs (Intelligence) on 10.8.1984, John Philipose, Chairman and acting Managing Director of the company (appellant in 98\/85) stated that the quality of the veneers was not mentioned either in the contract or in other shipping documents, such as shipping bill, invoice etc. and the consignment was to be exported to one Takahashi Sholai of Japan for purposes of sale there. Since the appellants have not indicated in the shipping bill and other connected relevant documents the value, specification, quality and description of the goods which were sought to be exported, as per the provisions of the Export Control Order 1977 and the provisions of the Foreign Exchange Regulation Act, proceedings were instituted against the appellants by issue of a show cause notice which ultimately culminated in the impugned order now appealed against.\n<\/p>\n
3.   The   learned   counsel   for   the  appellants   submitted   inter  alia   :-\n<\/p>\n
(1)  Since  the   description  of   the  goods   is  in  identical  terms  in the  shipping bills and the   relevant  invoices also indicate the same,  there cannot  be any  mistaken identity about the goods in   question   and   therefore,   the   change   of   misdeclaration   is not legally tenable.\n<\/p>\n
(2)  The   goods   in   question   are   not   prohibited   either   under  the Export Control Order or any other orders and since no statutory definition has been given, confiscation of the goods on grounds of misdeclaration or under-invoicing is contrary to law.\n<\/p>\n
(3)  The finding  of the adjudicating authority under the impugned order that  value of the goods was higher in the  market than what   was   indicated   in   the   invoices   is   based   on   enquiries, the particulars of which were not ofinished too the appellants, and   since  the  finding  itself  is on the basis of a conjecture, the  same  is  not   legally  sustainable.   When the Reserve  Bank of India and Excise authorities have not questioned or disputed the appellants’   valuation.  Customs authorities cannot question it.\n<\/p>\n
(4)  Comparison   of   the   market   prices  and  the   invoice   price   of the   appelants  has   no  legal   sanctity   since  “market   enquiries have no significance”.\n<\/p>\n
(5)  The   adjudicating   authority   failed   to   note   that   there   is   no need  for  an  exporter to    under-value the goods since  Indian exporter  can  only   sustain  himself   if  the  goods  are   sold at high   cost   and   the   incoming   money   is   essential   for   running the firm and its activities.  A  regular exporter like the appellants   obtaining   cash   assistance   and   export   incentive   need not and would not resort to undervaluation. The reliance placed by the adjudicating authority on a letter No. Sl(d) 285 dated 11.10.1983  addressed  by  the  appellants to  M\/s.  Shingu Shoko Ltd.,  Tokyo,  on a prior occasion has no correlation with the exports in question and could not be relied upon as an adverse circumstance against the appellants.\n<\/p>\n
(6)  The  adjudicating  authority has failed to prove  mens  rea and this would vitiate the impugned order. At any rate, the redemption fine and penalty are excessive and harsh.\n<\/p>\n
4.    The learned counsel for the appellants cited a number of authorities which I shall advert to at the relevant place.\n<\/p>\n
5.    The   learned   DR,    repelling   the   contentions   of   the   appellants, submitted that  the   relevant  particulars  relating to specification, quality, value etc. being absent in the connected shipping bill and other documents contravention of the provisions of the Export  Control Order and Foreign Exchange   Regulation    Act   has  been   made   out.   The   plea   of   ignorance of  the  provisions of  these   Acts by  the acting   Managing  Director would would   avail the  appellants under law  in any  way.  He  further urged that the appellants letter dated  11.10.1983 to  M\/s.  Shingu Shoko Ltd., Tokyo, would  certainly   be taken  as  a circumstance against the appellants evidencing transactions  contrary  to law,  though the  same is not  connected to   concerned  with  the  present   consignment.   The   learned   DR   submitted that   in terms of Sec.   14 of the  Act the value of goods for purpose of assessment   is the  price at  which  such  or like goods are ordinarily sold or  offered  for   sale,   for  delivery  at  the time  and place  of   importation or exportation, as the case may be, in the course of international trade. He contended that  if the full export  value of the goods is not given in the relevant documents, the same would be liable for confiscation. Fixation of   minimum   price  for certain  goods  like  mica,  coir, etc.   does  not  and will  not  mean that other articles sought to be exported need not  reflect the correct market price in the relevant documents.\n<\/p>\n
6.    I have carefully considered the  submissions of the parties herein. A perusal of the provisions of the Export Control Order 1977 with particular  reference to  Rule No.   13 would  make it  abundantly clear that an exporter   is   under  a   statutory   obligation to  furnish   in  the   shipping  bills and   other   connected   documents   the   value,   sort,   specifications,   quality and description of the goods that are exported. It will be useful to extract Sub-clause (4) of Clause 2 and Clause  13 of Export Trade Control Order, 1977 :\n<\/p>\n
“2(4) If in any case, it is found, that the value, sort, specification, quality and description of the goods to be exported are not in conformity with the declaration of the exporter in those respects or the quality and specification of such goods are not in accordance with the terms of the export contract, the export of such goods shall be deemed to be prohibited.”\n<\/p>\n
” 13. Declaration as the value, sort, quality etc, of exported goods. – On the exportation from any Customs port of any goods, whether liable to duty or not, the owner or exporter of such goods shall, in the shipping bill, or other relevant document state the value, sort, specifications quality and description of such goods to the best of his knowledge and belief, and certify that the quality and specification of goods, as stated in those documents, are in accordance with the terms of the export contract entered into with the buyer or consignee in pursuance of which the goods are being exported and shall subscribe to a declaration to the truth of such statements at the foot of such shipping Bill or other documents.”\n<\/p>\n
In the instant case admittedly these factual particulars have not been clearly indicated and mentioned in the shipping bill and other connected documents. In terms of Sec. 18 of the Foreign Exchange Regulation Act and exporter should declare the full export value of the goods that are exported In the instant case, john Philipose, the acting Managing Director and Chairman at the relevant time appeared before the authorities persuant to the summon issued to him under Sec. 108 of the Act and stated that veneers are graded according to their colour, stripe, absence of defects, thickness, length and width, and are priced on the basis of these charactristics, in addition to the cost of finished product. He has further stated that veneers having more length, width, thickness and quantity (more number of veneers in one flitch) would fetch higher price. In the context of this factual background and the statutory legal obligation cast on an exporter under the provisions of the Export Control Order and Foreign Exchange Regulation Act, besides the Customs Act, non-mention of the relevant particulars relating to the valuation of the export consignment in question would certainly be a contravention entailing confiscation. It is indeed strange that the Chairman and acting Managing Director has stated before the authority that he could not say whether the value of the consignment of rosewood veneers covered by shipping bill No. 1699 dated 22.6.84 represents “full export value of the goods”. The acting Managing Director could not even say how much was the cost of slicing of the veneers in the consignment in question. Even in the statement given before the Superintendent of Customs (Intelligence) on 10.8.84, the acting Managing Director has admitted that he had not mentioned the quality of the veneers in the contract or in the other shipping documents such as shipping bill, invoice etc., notwithstanding the fact that the consignment was being exported for purposes of sale in a foreign country. The fact that the quality of rosewood veneers is determined mainly with reference to colour, structure, grains, absence of defects, thickness and other measurements, ad the purposes for which they are used, does not admit of any controversy; nor is the same controverted by the appellants. Thickness of the veneers exported would be one of the surest indicators regarding the value of the same and as rightly pointed out by the Collector in the inpugned order, while thickness of veneers exported is usually of two standard sizes, viz. 0.2 mm and 0.5 mm, 8 crates of veneers under sizuere contain veneers of 0.5 mm thickness and the remaining 2 crates contain veneers of 0.6 mm thickness. I therefore do not find any substance in the submission of the learned counsel that there is no under-invoicing or misdeclaration of the value of the consignment for export. The plea of the appellants that there is no prohibition either under the Export Control Order or any other order and that there is no statutory definition of the item in question is hardly relevant for determination of the issue relating to under-invoicing or undervaluation within the provisions of the Customs Act, Export Control Order and Foreign Exchange Regulation Act. The ratio of the ruling in the case of Bimex International Maha Singh Gate, Amritsar v. Union of India and Ors. reported in 1984 (16) E.L.T. 212 (P&H). has absolutely no relevance or application to the facts of the present case. That was a case where the Punjab and Haryana High Court held that in the absence of statutory definition of rags the meaning assigned to the term “woollen rags” in the trade have to be accepted. In the present case there is no dispute or controversy that the appellants attempted to export rosewood veneers. As a matter of fact in terms of Section 13 of the Export Control Order, 1977, on the exportation from any Customs port of any goods whether liable to duty or not the owner or exporter of such goods shall in the shipping bill or other relevant documents state the value, sort, specification, quality and description of such goods to the best of his knowledge and belief and shall subscribe to a declaration to the truth of such statements at the foot of such shipping bill or other documents. The export of such goods shall be deemed to be prohibited if they are not in conformity with the declaration as per Sub-clause (4) of clause 3 of the Export Control Order. The plea of the learned counsel that enquiries by the authorities of the market prices is only a conjecture cannot be countenanced. It is clearly stated in the show cause notice that on the basis of the result of market enquiries, the component opinions expressed by experienced traders and exporters in the field after personal inspection and evaluation of the consignment in question, the comparison of the prices or various export consignments of rosewood veneers of similar quality made from Cochin during the preceding few months, the comparison of the prices of rosewood veneers of comparable quality ruling in the local market and also after valuation of the consignment by the Department, the real value of the rosewood veneers under seizure was estimated at U.S. $ 2.40 per sq. mtr. The appellants notwithstanding the receipt of the show cause notice and their reply to the same, besides participation in the personal enquiry, never joined issue with the authorities with reference to the enquiries conducted by the Department, the opinion of the experts, comparative prices ruling in the market, value of export consignments of rosewood veneers of similar quality exported from the same port in the preceding few months nor did they want to avail themselves of an opportunity to cross-examine the persons connected with the sources of such information. In such circumstances it is puerile for the appellants to merely assert that the market enquiry and the reliance on the aforesaid facts and circumstances are made conjectures. As rightly pointed by the learned DR, Sec. 14 of the Act deals with valuation of goods for purposes of assessment and the same shall be deemed to be, –\n<\/p>\n
(a)  the price at which such or like goods are ordinarily sold, or offered for   sale,   for  delivery   at   the  time   and   place   of   importation  or exportation,   as  the   case   may   be,   in the  course   of   international trade,   where   the   seller  and  the  buyer  have   no   interest   in  the business   of   each   other   and   the   price   is  the   sole  consideration for the sale of offer for sale:\n<\/p>\n
 Provided that such price shall be calculated with reference to the, rate of exchange as in force on the date on which a bill of entry is presented under Sec. 46 or a shipping bill or bill of export, as the case may be, is presented under Sec. 50;\n<\/p>\n
(b)  where   such   price   is   not   ascertainable,  the   nearest  ascertainable equivalent  thereof  determined  in accordance with the  rules made in this bahalf.\n<\/p>\n
I do not find any substance in the argument of the learned counsel that there is no need at for an exporter to undervalue the goods since incoming money is essential for the running of the firm and one would not be inclined to forgo the advantages of export incentive, cash assistance etc. by undervaluation. The question is whether materials available on record under-invoicing or under-valuation is proved against the appellants and therefore the mere plea that an exporter would not have recourse to such undervaluation is neither here nor there. The learned counsel assailed the impugned order for placing reliance on the letter dated 11.10.1983 addressed by the appellants to M\/s. Shingu Shoko Ltd., Tokyo. It is true that this particular letter does not have a direct nexus or connection with the export consignment in question. But in the context of the plea of the appellants that they are ignorant of the relevant rules and regulations and the full export value of the goods, this letter can be taken into consideration to show and prove that in the past the appellants have resorted to activities of undervaluation or under-invoicing contrary to law. This letter would disprove the plea of the appellants about their complete ignorance of the relevant rules and regulations. It is in the context of these facts and circumtances one would have to construe whether the appellants were actuated by malafides and mens rea in respect of the goods  under seizuere. The plethora of circumstances and factual details do not leave any doubt in my mind that in the instant case the appellants had mens rea in attempting to export the goods under seizure in contravention of the provision of law.\n<\/p>\n
7.    At this stage let  me refer to the authorities relied upon by the learned   counsel   for  the   appellants   regarding   under   valuation  or  under-invoicing.   The   ruling   in the  case  of   Albin  v.  Union of  India,  judgment of the Kerala High Court, reported in 1’979 K.L.T. 585, has no application to  the  facts  of  the  present  case.   That  was a case  where  in terms of the notification issued under Sec. 6 of (Export Quality Control and Inspection)   Act,    1963,   Export   Promotion   Agency,   the   competent   authority, certified to the quality  and export  worthiness of frozen shrimps and at the   wharf   the   Customs  authorities   noticed   some  defects  in  the  goods, called upon the Agency to conduct a fresh examination which the Agency did  and  declared the goods “unexport  worthy”.  The finding of the Court was that  the  certificate  issued  by the competent  Agency was valid and operated till cancellation and after the declaration of unexport worthiness, no  attempt   to  export   was   made  by  the  exporters.   In  the   instant  case the   admitted   fact   remaining   that   goods  were   brought   for   export   and the   only   issue   is   with   reference   to   under-invoicing   or   undervaluation in terms of Sec. 14 of the Customs Act.\n<\/p>\n
8.    The   learned   counsel  then   referred  to   the   ruling  of the Calcutta High Court  in the case of Harchand v.  Additional Collector of Customs, Calcutta,   and   others,   reported   in   1981   E.L.T.   699  (Cal.)  land contended that   suspicion   can   never  take   the   place   of   proof.   Nobody   can   quarrel with   the   axiomatic   proposition   of   law   laid   down  by   the   learned  Judge in the  said   ruling.   But   in the  instant  case,  I  have found the appellants guilty of the offence alleged against them on the basis of legal and acceptable evidence.\n<\/p>\n
9.    The reference of the learned counsel to the case of Marcandy Prasad  Radhakrishna Prasad Pvt.  Ltd.  v.  Collector of Customs, Calcutta, reported in 198f (18) ELT 547 is utterly irrelevant  to the issues in the  instant  case.  That was a case where the impugned order was set aside and the matter remitted back on the ground that  non-summoning of a test  officer who had conducted a test analysis of the goods for cross examination by the aggrieved party, as requested by  him, was  violative  of  the principles of  natural  justice.  In the instant case   admittedly   the   appellants   did   not   want   to   cross   examine  anybody nor asked for one.\n<\/p>\n
10.  The   reliance   placed   by   the   learned   counsel   on   a   judgment   of the  Kerala  High  Court   in the case  of  Shanmukha  Vilas Cashew  Traders v.   Collector   of   Customs,   Cochin,   reported   in   1985   ECR   603  (Kerala), has  totally   no  application  to the  facts  of  the  present   case.   That   was a case  where the  exporter consequent  on labour  strike  and agitation in his factories could  not honour his contractual export  commitments dated 11.4.198.3 and the parties to the contract varied the mode of performance after   negotiation   under   which   the   purchaser  agreed  for  substitution  of lower   grade   cashew   kernels   of   interior   variety.   The   Court   found  that there was no novation or substitution of contract and change in the mode of  performance came clearly  within the  mischief and  ambit  of  Sec.   63 of the Contract Act under which a promisee may dispense with or remit, wholly  or  in part,  the performance  of the promise  made to him or may extend the time for such performance, or may accept  instead of it any satisfaction which he thinks fit. The High Court observed :\n<\/p>\n
 “…Here  it   is also  relevant  to  note that it is not the case of the department that the price quoted and agreed upon between the parties at the time when the contract was entered into did not represent the market price prevailing at that time.”\n<\/p>\n
The  facts   in the  present   case are  entirely different  and  so this  ruling has   no   bearing   or   relevance  to  the  present   case.   Likewise,   the   ruling reported in 1985 ECR 646 (Cegat), Special Bench ‘A’, in the case of Rakesh Press v. Collector of Customs, Bombay has no relevance to the facts of the present case and is clearly distinguishable on facts. At the same time I should observe that the legal principles enunciated therein are against the appellants herein. That was a case where the charge of undervaluation was sought to be rested by the Collector in respect of an import on the basis of the value of similar goods imported in a solitary instance and the Tribunal found that the goods were not comparable in all aspects and the charge was not established “on account of insufficient supporting evidence”. The ratio in the ruling is that the Department can discharge the burden of proving under-invoicing by making detailed enquiries and collecting materials, as has been done in the present case.\n<\/p>\n
11.  The ruling of the Special Bench ‘A’ Delhi, in the case of Babcock Venkateshwara   Hatcheries   (P)   Ltd.    v.   Collector   of   Customs,   Bombay, reported   in   1985 (21) ELT   335   (Tribunal),   relied   upon  by   the  appellants would   not   in  any  way  held  them.   The  Tribunal  found in that  case that the   price   agreed   upon   between   the   parties   after   normal   negotiations reflected  the   ruling   price   in the  international   market   in terms  of  Sec. 14(1)(a) of the Customs  Act  and there was  no acceptable legal evidence contra. Here in the instant case, the comparison of the prices of rosewood veneers  of   similar  quality  exported  from  Cochin port   in the  immediate preceding  months,  comparison of the prices of  rosewood veneers of comparable quality ruling in the local market, opinions expressed by experienced traders and exporters of the goods under seizure after personal inspection, market  enquiries and  other factors were  relied upon by the Department to prove under-invoicing or undervaluation by the appellants herein, which were neither specifically challenged in the reply to the show cause notice nor did they seek to disprove the same by cross-examination.\n<\/p>\n
12.  The appellants’   reference to Special  Bench ‘A1   ruling in the case of Tara Art Printers v. Collector of Customs, Bombay, reported in 1985 (21) ELT 358 (Tribunal), will not  in any way avail the appellants since in that case the finding was that the basis of valuation adopted by the Collector was “ad hoc, if not totally arbitrary” unlike in the present case.\n<\/p>\n
13. The   appellants’   reference   to   the   judgment   of   the   Madras  High Court  in the case of  Ranjit  Export Private Ltd.  v. Collector of Customs, Madras,  reported in 1985 (21) ELT 353 (Mad.) is not relevant to the facts of the present case. That was a case where the High Court on consideration of  the  evidence  and   materials  found  “what  the  petitioner did could  not fall  within the legal concept  of attempt to export”. In the present case, it   is  not  the  case  of  the  appellants that  the  goods  under seizure were not  attempted to be exported and there was no such plea at any time.\n<\/p>\n
14. Therefore, on careful consideration of all the materials available on record, I am inclined to hold that the charge found against the appellants under the impugned order is legally sustainable. In the facts and circumstances of the case, neither the quantum of fine in lieu of confiscation nor the penalty can be said to be harsh or excessive. The fine and penalty imposed on the appellants are therefore confirmed. In the result. appeal No. 88\/85 in respect of M\/s United Veneers (P) Ltd. is dismissed.\n<\/p>\n
15. So far as appeals 97\/85 and 98\/85 filed by K.S. Simon and John Philipose are concerned, since no penalty or fine is imposed on them, they are dismissed as not maintainable.<\/p>\n","protected":false},"excerpt":{"rendered":"
Customs, Excise and Gold Tribunal – Tamil Nadu United Veneers (P) Ltd. And Ors. vs Collector Of Customs on 4 October, 1985 Equivalent citations: 1986 (6) ECR 464 Tri Chennai, 1986 (26) ELT 322 Tri Chennai ORDER S. Kalyanam, Member (J) 1. The appeals are directed against the order of the Collector of Customs, Cochin, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-116731","post","type-post","status-publish","format-standard","hentry","category-judgements"],"yoast_head":"\nUnited Veneers (P) Ltd. And Ors. vs Collector Of Customs on 4 October, 1985 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/united-veneers-p-ltd-and-ors-vs-collector-of-customs-on-4-october-1985\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"United Veneers (P) Ltd. 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