MANSAROVAR PEARLS Vs. COMMISSIONER OF CUSTOMS, MUMBAI

JUDGEMENT

(1.) SHRI C.L. Bhanot, learned Advocate, mentioned that the Appellants, M/s. Mansarovar Pearls, have filed a Miscellaneous Application to amend the relief in the appeal which may be read as: -

(2.) The learned Advocate submitted that the Appellants verbally asked a regular farmer to send 50 Kgs. of 'fresh water unworked pearls'; that the supplier besides sending 50 kg, also sent another stock lot of 104.7 kgs. of fresh water pearls worked and 205 pieces of God Idol in two sizes; that the consignment contained 29 cartons of fresh water pearls as described in the invoice, packing list, airway bill and the Import General Manifest; that as per details in the invoice, the quantity weight was 260.7 Kgs. valued at US $ 1500. He, further, submitted that on clarification from the supplier verbally, they filed Bill of Entry with a clear approval of Deputy Commissioner of Customs under Section 46 of the Customs Act; that accordingly the Department cannot consider the import as misdeclared or under valued since the act covered under the provisions of Section 46 states that the importer is not very sure of the imported articles and would like the department to first assess the articles before the valuation and duty is decided. He also mentioned that 205 pieces of Ganesh idols are not embedded pearls but just strung pearls over an idol piece made of plaster of paris and hence is in the normal category of articles of fresh water pearls; that the item Fresh Water Pearls being called worked by virtue of a string hole are also treated as raw fresh water pearls under the clear distinction of BTN which has permitted drilled pearls also as fresh water pearls raw; that accordingly licence is valid for import. He further stated that the value has not been accepted by the Department without informing the Appellants about the Constitution of the Panel; that they were not given the chance to explain their view point also; that the Department had not shown the invoice for contemporaneous import of pearls; that under these circumstances, the panel report is void in law and should be rejected; that they had mentioned the contemporary imports of the Appellants themselves and had submitted to the Department a letter dated 9.9.2000 with copies of Bills of Entry and fact copy of the letter of the supplier which had not been considered. He relied upon the decision in the case of Commissioner of Customs v. Swami Narayan Electronics Pvt. Ltd., 1999 ELT 470 (T) wherein it was held that as no evidence had been produced by the Department to reject the normal transaction value and merely because the goods are classifiable under a different heading than the one claimed by the importers, did not mean that the value had also been misdeclared by them. He also relied upon the decision in the Forest Range Officer v. Mohammed Ali, AIR 1954 S.C. wherein it was observed that "Expert opinion is only an opinion evidence on either side and does not aid us in interpretation." He emphasize that the enhancement of value is arbitrary and the declared value should be accepted.

(3.) COUNTERING the submissions, Shri M.M. Dubey, learned D.R., submitted that though the Bill of Entry was filed for three items, namely, fresh water, pearls (raw), articles of fresh water pears and fresh water pearls (worked), all other documents such as Airway Bill, Invoice and Packing lest referred to only one item namely fresh water pearls; that how and where from the Appellants got the particulars of these three items; that the description mentioned in the invoice is 260.7 Kgs. Fresh water pearls whereas the gross weight mentioned in the packing lest is 280 Kg.; that as the invoice was in respect of only one item, the transaction value mentioned therein cannot be accepted as it did not represent transaction value of the three items imported. The learned DR, also mentioned that the Commissioner of Customs, under Standing Order No. 4/Dated 21.11.97, constituted the Trade Advisory Panel for Gem and Jewellery and that the nominations had been made mostly on the basis of recommendations of the Trade Associations; that the Appellant cannot, therefore, contend that Panel is biased; that no reasons have been advanced by them to allege that the panel is biased against them. The learned DR, further, submitted that the value has rightly been determined under Rule 8 of the Customs Valuation Rules; that the value will differ from pearl to pearl depending upon colour, clarity and carat etc.; that for this reasons the value cannot be determined on the basis of Bill of Entry of September 1999; that it is not possible to correlate the goods already cleared with the impugned goods, more so due to stereotype description of the goods on the invoice as "fresh water pearls"; that nothing is mentioned about the shape, size, quality etc. of the pearls which is necessary for the purpose of valuation; that the variation in the price of fresh water pearls is so much that no previous invoice can be considered for determining the value. The learned DR also mentioned that para 8.30 of Hand Book of import Export Policy regarding Gem Replenishment licence does not mention about articles of pearls as it mentions only about import of rough diamonds, precious stones, semi precious and synthetic stones and pearls; that articles of pearls are the final products and the same cannot be imported against Replenishment licence. In reply that learned Advocate emphasised that without applying Customs Valuation Rules sequentially, the Revenue has taken the value arbitrarily. He relied upon the decision in the case of Fransa Corporation v. Collector of Customs, : 1991 (56) ELT 586 (T).