WINSTAR ELECTRONICS Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) WHEN this appeal was called none appeared for the appellant. No proper reason was filed for absence of appellant or his representative. It was merely mentioned by proxy advocate that advocate of appellants had gone out of the station. No request for adjournment was filed. We, therefore, do not find reasonable ground for adjourning the case and accordingly deciding the case after hearing the learned Authorised Representative of the Department.

(2.) SHOW cause notice was issued to the appellant demanding duty of Rs. 2,64,250/ - and proposing penalty on them on thg eround that they have misdeclared the value of the consignment for 21000 pieces of watch cases with metal band imported under Bill of Entry No. 1273 dated 11 -9 -97. During investigation Shri O.P. Agarwal, Proprietor of the appellant firm stated that he declared the CIF value of the goods as per invoice received by him from the supplier. On investigation, it was found that the supplier of the goods had declared much higher export price in the export documents submitted by him before the Hong Kong Custom. It was alleged in the show cause notice that the value declared in the Bill of Entry was equivalent to Rs. 3,41,901/ - CIF whereas the FOB value shown in the export declaration by the supplier in Hong Kong was equivalent to Rs. 8,03,790/ -. The case was adjudicated by the Additional Commissioner of Customs, Jaipur who confirmed the demand and confiscated the goods imported under Bill of Entry No. 1273 dated 11 -9 -1997 under Section 111(m) of the Customs Act but allowed these to be redeemed on a redemption fine of Rs. 3,50,000/ -. He also imposed penalty of Rs. 2,64,250/ - on the appellants under Section 114A of the Customs Act. The Commissioner (Appeals) under the impugned Order rejected the appeal filed by the appellant.

(3.) IN the appeal petition the appellants have taken a ground that the goods were assessed under Bill of Entry No. 1273 dated 11 -9 -1997 and allowed clearance on 15 -9 -1997. However, the show cause notice was issued to them on 29 -5 -2002 demanding differential duty and proposing penalty is time barred. 21,000 pieces of watch cases with metal band were dispatched from Hong Kong on 2 -9 -1997 and 100% examination was conducted by the Custom authorities in India on 12 -9 -1997. The reliance placed by the department on declaration alleged to have been filed by supplier of the goods and reportedly to have been obtained by the DRI from Hong Kong Custom, was filed on 10 -9 -1997, whereas the goods were dispatched on 2 -9 -1997. The declaration filed by supplier of goods with Hong Kong Customs was for two items namely; (1) 21,000 pieces of metal watch cases and (ii) 21000 metal watch strap. The appellant imported 21,000 watch cases with metal band. Thus, the declaration filed by the supplier of the goods does not covers the goods imported by the appellant. On the question of filing declaration subsequent to dispatch of goods, the adjudicating authority has recorded that as per Hong Kong customs regulations the exporter was permitted to file export declaration within 14 days. This is not"bcsgd on an{ qtctwtor{ authority. It uas also pleadgd that leithep thg aopies od aorrespondgnae were supplied nor any documents to show that permission to Indian customs for use of the declaration was granted by the competent authority of Hong Kong Customs. The"arpellant imported goods for which documents were received through Bank and payment thereof remitted through bank. The goods tallied in description and on physical examination as shown in the invoice. Accordingly, the assessment of duty was made on the value of goods in terms of Section 14(1) of the Customs Act. On reading Rule 3(1) and Rule 4(1) of the Customs Valuation rules, it is clear that a mandate has been cast on the authority to accept the price actually paid. Rejection of transaction value on the basis of the declaration which itself is not for the goods imported by the appellant because of the material difference in the description of goods is against the law laid -down by the Supreme court in the case of Eicher Tractors Ltd. v. Commissioner of Customs, Mumbai