2005-TIOL-510-CESTAT-MUM
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI

Appeal No. 180 & 183/97 Bom

Arising out of Order-in-Original SIIB/INV/66/55/S/10-7/96 SIIB/ACC/CC/33/97 ACC dated 28.10.1997 Passed by the Commissioner of Customs, Air Cargo Complex, Mumbai

Date of hearing : 13.12.2004

Date of decision : 26.04.2005

LAN ESENDA LTD
ANUP SAXENA
Vs
COMMISSIONER OF CUSTOMS, MUMBAI

APPELLANT (REP. BY : SHRI MANOJ SANKLECHA, ADV)
RESPONDENT (REP. BY : SHRI SANJAY SINGHAL, DR)

CORAM :

MS. ARCHANA WADHWA, MEMBER (J) S.S. SEKHON, MEMBER (TECHNICAL)

Price of contemporary imports of identical goods from same manufacturer being higher, declared prices to be disregarded ORDER NO. A/304, 305/WZB/2004-C-II

Per : S.S. Sekhon, Member (T) : 1.The appellants have imported certain computers from M/s. Tulip Computers Asia Ld, Hong Kong. The Department alleged that the goods are manufactured by M/s. Tulip Computers, Netherlands and that the company being shown as an authorised dealer of Tulip Computers in their directory and that the prices declared are lower than those of similar computers noticed with similar or identical specifications. The Department, pending investigation, provisionally assessed the Bills of Entry. Subsequently the department finalised the Assessments by taking the values of the goods imported by the Appellants themselves in different Bills of Entry. Since the licence submitted for covering the goods does not cover the enhanced value, the goods were confiscated and fine/penalty imposed.

2.Heard Both sides.

3.Shri Manoj Sanklecha, Ld Advocate for the Appellants submits that there is no allegation that any of the conditions of Rule 4(2) of the Customs (Valuation of imported Goods) Rules, 1988 are attracted in the present case and relies on the judgment of the Hon'ble Supreme Court in the case of M/s. Eicher Tractors Ltd. 2000 122 ELT 122 ELT 321 (SC). He submits that the values declared are fair and that the same was based on the price that such goods would fetch in India for capturing the market. Learned Counsel also submits that the prices being compared are their own imports and hence there cannot be any allegation of willful misstatement of prices.

4.Shri Sanjay Singhal, the Ld. Department Representative submits that the prices declared are based on the prices that the goods would fetch in the India Market, and does not reflect the price in the course of international trade. It was also pointed out that similar goods imported by the appellants themselves for identical specifications were higher than that declared. It was found that the orders for the goods were placed on the same day but the deliveries have taken place at different dates and the price on the same day on which the purchase order was placed should be taken for Assessment. The country of Original has been declared as Hong Kong whereas the goods are of Netherlands Origin. It was also pointed out that there is no purchase Order, Contract Note etc nor was the Manufacturers Invoice submitted as required under Rule 10A of the Customs Valuation Rules, 1988.

5.After hearing both sides, we find that the Hon'ble Supreme Court in SLP No. 2824/1989 in the case between Union of India Vs. Godrej & Boyce Manufacturing Co Pvt Ltd vide its Order dated 8.3.1990 has held that the Department is empowered to obtain such facts as are necessary to finalize Provisional Assessment. Similarly, the Supreme Court in the case of Commissioner of Customs, Mumbai Vs. Shibani Engg Systems 1996 86 ELT 453 (SC) has held that when the manufacturers invoice is not produced, price of similar goods can be taken for assessment purposes. Finally the Hon'ble Supreme Court in the case of Shyam Antenna Electronics Ltd. 1994 55 ECR 495 upheld the Tribunal's Order wherein it was decided that for price of contemporary imports of identical goods from same manufacturer being higher, declared prices to be disregarded. The judgment of the Hon'ble Supreme Court in the case of M/s. Eicher Tractors Ltd 200 122 ELT 321 (SC) is not applicable to the facts of the present case since this is not a case of discount.

6. Accordingly, we uphold the valuation but set aside the penalties since this is a case of finalisation of provisional assessment.