SRIDHARAN DIAMOND Vs. COMMISSIONER OF CUSTOMS,

JUDGEMENT

(1.) This appeal arises from Order -in -Original No. 30/99 dated 8.4.99 passed by the Commissioner of Customs (Airport), Custom House, Calcutta ordering for confiscation of goods valued at Rs. 12,79,377.40 CIF under Section 111 (m) of the Customs Act'62 since it was deemed to have been mis -declared, however, granting redemption on fine of Rs. 2.50 lakhs. There is penalty of Rs. 65,000/ - imposed on the appellants in terms of Section 112(a)(iii) of the Customs Act'62.

(2.) Arguing for the appellants Ld.Advocate Shri A.K. Jayaraj accompanied by Shri M.S. Kumaraswamy, Ld.Consultant pointed out that appellants had filed Bill of Entry declaring the consignment to contain 200 Kgs of synthetic ruby first cracle at the rate of US 12.00 per kg and 347 Kgs of synthetic ruby cracle at the rate of US 8.00 per kg from M/s. Hameed Co. Ltd., Thailand. The department had relied on an invoice dated 28.12.98 of M/s. Sikkim Jewels Ltd., for enhancing the value to US 70 per kgs. for the purpose of duty and why the goods should not be confiscated on the allegation of misdeclaration.

(3.) Ld.Counsel pointed out that the goods which are described in the invoice dated 28.12.98 of Sikkim Jewels Ltd., was imported from China and they were not comparable goods. He contended that it was against the principles of valuation to compare the goods which were not of same country of origin, time, quality and quantity. He also contended that appellants had given expert opinion to show that the times were different and they were not comparable but the Commissioner has not given any findings on this plea. He also pointed that no expert opinion was taken but the Commissioner in para 6.5 has noted that she has seen the representative samples and on her visual examination the first item in impugned invoice was found to be identical with the goods imported by M/s. Sikkim Jewels Ltd. On that premise, she came to the conclusion that the second item of the said invoice was of some what inferior quality to the goods of M/s. Sikkim Jewels Ltd. On that premises and assumption and presumption, she has enhanced the value which is against the principles of law as laid down by the Apex Court in the case of BASANT INDUSTRIES 1996 (81) ELT 195 (SC) ; SUSHIL KUMAR KAYAN v. ACC -1993 (68) ELT 537 (Cal.) ; SPICES TRADING CORPORATION - 1998 (104) ELT 665 (T); VINTEL DISTRIBUTORS PVT. LTD. -final order No. 1449/2001 dated 21/8/2001. He contended that as the goods were not comparable and therefore the order is required to be set aside by allowing the appeal.