MAGNUM INTERNATIONAL TRADING CO. Vs. COMMR. OF CUS.

JUDGEMENT

(1.) M /s. Magnum International Trading Co. Ltd. have filed this appeal against the Order -in -Original, dated 25 -3 -1996 passed by the Commissioner of Customs, New Delhi.

(2.) BRIEFLY stated the facts are that the Appellants filed a Bill of Entry No. 203011, dated 11 -1 -1995 for seeking clearance of Rolls Royce Car Model 1994 sent by M/s. Jack Barclay Ltd., London. The car was released on payment of duty based on the declaration filed by them regarding value and other particulars of car against Import licence No. P/K/05466 V, dated 30 -11 -1993. Subsequently the car was seized as the investigation revealed that the CIF Value should be Rs. 53,20,987/ - instead of Rs. 43,95,712/ - declared by the Appellants and that the Import Licence was short by Rs. 9,25,275/ -. The Commissioner of Customs, under the impugned Order, demanded Customs duty amounting to Rs. 12,28,731/ -, imposed penalty of Rs. 10 lakh and confiscated the car with an option to redeem the same on payment of a fine of Rs. 15 lakh, holding that as per certificate from the British Customs, the ex -factory price of the impugned car was 102527.20 and as per invoice dated 23 -12 -1994 issued by M/s. Jack Barclay, the price was 113035; that the Appellants had given a forged invoice and not a true invoice; that as per Tribunal's decision in Sanjay Chandi Ram v. C. C. Calcutta -1991 (52) E.L.T. 413, the actual CIF price could be debited to the licence provided it was a bonafide price.

(3.) SHRI L.P. Asthana, learned Advocate, submitted that the invoice submit by the Appellants has been considered to be forged one by the Commissioner on the basis of an unsigned copy of an invoice dated, 23 -12 -1994 purported to have been issued by M/s. Jack Barclay; that the value has been enhanced on the basis of unsigned invoice which is no evidence at all; that a genuine invoice cannot be challenged on the basis of an unsigned invoice; that the reference number given in invoice issued by M/s. Jack Barclay to them, is different from that given on the unsigned invoice; that unsigned invoice is not authentic is also evident from the fact that for an international transaction no value added tax (VAT) is to be paid by the seller whereas in the unsigned invoice a VAT of 16,385 had been added. The learned Counsel, further, submitted that letter, dated 7 -8 -1995, from M/s. Rolls Royce Motor Cars, refers to a chasis No. which is different from the chasis No. quoted in some letters of enquiry of the U.K. Customs and as such it is not clear whether the price given by M/s. Rolls Royce Motor Cars is of the case in question or of another car . He also mentioned that in domestic trade in U.K., VAT which is about 17 -18% is included in the sale price and if it is deducted from 1,02,427, the net price would be almost the same as declared by the Appellants; that generally export prices are lower than the domestic prices; The learned Advocate, further, mentioned that the Appellants had paid only 81500 to the supplier which is evident from the demand draft, dated 27 -1 -1995 (at page 19 of Appeal Papers), that on the basis of a fax message (at page 51 of the Appeal Papers) the Revenue is concluding that the payment of 1,08,670.50 has been made to M/s. Jack Barclay Ltd; that there is nothing to connect the Appellants with the said message; that according to letter, dated 22 -8 -1995 of High Commission of India, London, the invoice submitted by the importer was a proforma invoice; that the Department has to prove the charge of undervaluation as held by the Supreme Court in the case of Mirah Exports Pvt. Ltd. v. Collector of Customs -1998 (98) E.L.T. 3 (S.C.). He also contended that the Revenue had not taken a formal statement from M/s. Jack Barclay about the price at which impugned car was sold. He also relied upon the decision in the case of Collector of Customs v. East Punjab Traders - 1997 (89) E.L.T. 11 (S.C.) wherein it was held that authenticity of documents obtained by Customs not bearing any signature and not received from proper source is suspected. He finally submitted that under Rule 8 of the Customs Valuation Rules, manufacturer's price cannot be taken for the purpose of assessment.