NATIONAL OXIGEN LIMITED REP BY ITS COMPANY SECRTARY K V DEVANATHAN, CHENNAI Vs. COMMISSIONER OF CUSTOMS, CUSTOMS HOUSE, CHENNAI AND CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL, SOUTHERN ZONAL BENCH REP BY ITS REGISTRAR, SHASTRI BHAVAN, CHENNAI

JUDGEMENT

(1.) Petitioner company has filed this writ petition praying to issue a writ of certiorarified mandamus calling for the records comprised in proceedings of the second respondent dated 20.1.1998 in Appeal Nos.902-903/1997 (Order Nos.112 to 114 of 1999 and quash the same in so far as it relates to payment of Rs.37,50,000/- as condition precedent for the first respondent to adjudicate the matter on remand by the second respondent and consequently direct the first respondent to adjudicate the matter on remand without insisting upon the payment of differential duty and decide all the issues which have been left open uninfluenced by any of the observations made in the impugned order of second respondent or in the order of the first respondent which was appealed against and now remanded back.

(2.) In the affidavit filed in support of the writ petition, the petitioner would submit that it is a manufacturer of industrial gases such as Liquid and Gaseous Oxygen Nitrogen etc., that the petitioner has its factory at Pondicherry; that the petitioner came across an advertisement in 'Business India' in the year 1989 regarding the sale of a second-hand 75 TPD plant available for sale in California U.S.A. with M/s Nickolai Joffee Corporation (hereinafter called as NJC); that primarily the NJC was a scarp Dealer and had purchased the said plant and machinery as a scrap; that NJC made enquiry in order for sale of the second-hand incomplete plant for a sum of U.S.Dollars 939,500/-; that during December 1991 NJC revised its earlier offer and quoted a price of US Dollars 7,89,000/-; that in January 1992 NJC informed the petitioner that the price of the plant included U.S.Dollars 1,60,000/- for reforming and converting 3000 HP and 500 HP Motors from 60 Hzs. to 50 Hzs.; that the NJC further revised the offer on 2nd June 1992 to US Dollars 3,35,000/- FAS plus freight, insurance with the condition that the cost of conversion of two electric motors 3000 HP and 500 HP into 50 Hzs. was to be borne by the petitioner; that however, further negotiations were carried out and the petitioner was able to strike a reasonable bargain for import of the incomplete plant at U.S.Dollars 4,31,800/- C&F Chennai, India.

(3.) The petitioner would further submit that the prescribed format from the Chartered Engineer as per the Statutory requirement was obtained on 6.11.1993; that according to the Certificate, different parts were manufactured by different manufacturers in U.S.A. and the estimated CIF value of equivalent new machinery in the International Market as on date was mentioned as US Dollars 3 Millions; that as an incomplete plant had been initially manufactured in its original shape in the year 1965, the plant was refurbished in 1985 as per the Certificate of Chartered Engineer; that as there were certain restrictions with regard to import of second-hand machinery, it was at the petitioner's suggestion that the year of manufacture or refurbishing could be shown as 1987 as it was declared surplus in that year, the age restriction regarding import of second-hand machinery had been modified and consequently there was no necessity to show the year of manufacture as 1987; that originally the price mentioned was US Dollars 3,17,900/- CIF which was amended to enhance the CIF value to US Dollars 4,33,900/- as per the request made by the petitioner to the Director General of Foreign Trade, New Delhi; that on arrival of the shipments, the bills of entry were duly filed in the Chennai Customs House; that since the import was totally an incomplete machinery, the petitioner had imported other items including 24 Nos. large storage tanks and 58 Nos. special cryogenic storage cylinders for storage of liquid Oxygen Nitrogen and Argon manufactured from the second-hand plant valued at US Dollars 9,48,867/- (equivalent to Rs.2,99,48,474/-) on which customs duty of Rs.1,13,43,100/- was additionally paid which formed part of the imported plant; that when the said plant was sought to be cleared, the customs authorities had asked for original invoice of the plant purchased relatable to the year 1965 from the original owner for assessment and clearance of the goods; that the original invoice was not available with them as they were only scrap dealers.