OM SHIV ENTERPRISES Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) Both these appeals arise from a common Order -in -Original No. 51/2001 dt. 20 -2 -2001 passed by the Commissioner of Customs, Chennai. The appellants had imported one photo -composing machine vide Bill of Entry dated 24 -12 -92 declaring the item falling under chapter heading 8442.10 and also claiming the benefit of Notifications No. 59/87, 151/92 and 154/92, However, after due enquiries and verifications the classification was changed to chapter heading 9010.00 which carries higher rate of duty and the benefit was denied. After a lapse of time, the proceedings were initiated to reopen the issue against the importer -appellant by DRI officers by searching the premises and seizing the item which had been imported. Appellants were issued with show cause notice alleging under -valuation of the goods and the department relied upon Bill of Entry No. 221421 dated 27 -4 -91 wherein the items imported was "Photo Composite System printed matter" and the department desired to enhance the value on the basis of this Bill of Entry where the goods had been classified under chapter heading No. 8442.10 and the weight of the item has been shown as 739.0 Kgs. as against the weight of the imported item i.e. 300 Kgs. Appellants took the stand before the Commissioner that the items are totally different with different description and different classifications including the weightage of each item. They also contended that imports made in the year 1991 cannot be compared with the imports made by them on 24 -2 -92 but finally assessed on 24 -2 -93 after due enquiries. They also pointed out that appellants had imported the item directly from the manufacturer M/s. Fotokad Corporation, Malaysia while the Bill of Entry under comparison was in respect of goods imported from a trader and therefore the prices being different and the item also being different, the value of the appellant -importer's goods cannot be enhanced to US 34,850 per machine as against the declared value of US 7900 (CIF). The Commissioner rejected the plea and proceeded on the basis that the Tribunal had in the case of M/s. Vee Kay Fotokad India Pvt. Ltd. [1995 (80) E.L.T. 725 (Tri.)] upheld the under -valuation in the matter which had been decided in the year 1990. The Commissioner also held that it was for the importers to establish the aspect of undervaluation and show that their declared price of US 7900 represented the price in the course of the international trade. He also did not accept the importer's plea that the item was totally different and that there was steep decline in the price during the years. All the pleas of the importer were rejected and the Commissioner proceeded to hold that it was for the importer to have established their case and as they have not established their case, the value was required to be enhanced and therefore the goods were liable for confiscation and imposition of fine and penalty. He also rejected the plea that the assessment had been completed in their case after due enquiries after correspondence with the supplier as well as with the importers and therefore reopening the classification was barred by time. He also did not accept the plea of the item being assessed under different heading requiring the matter to be dropped. Although, he agreed that both the items under comparison and the imported items fell under different chapter headings:

(2.) We have heard ld. Counsel Shri Amit Awasthi and Shri P.N. Awasthi, Sr. Counsel for the appellant and Shri G. Sreekumar Menon, ld. SDR for the Revenue.

(3.) Ld. Counsel pointed to various facts on record and showed that the item under import was assessed finally on 25 -2 -93 after due enquiries by the Customs officers including the correspondence with the importer and the supplier. He points out that department was comparing with the different product which had different description and weightage and also was imported from a trader. It was also pointed out that the entire finding of the Commissioner is against the principles of valuation laid down under Section 14 of the Act and large number of judgments rendered by the Apex Court, High Court and the Tribunal. A list of twenty five judgments was filed. Ld. Counsel also contended that the assessment had been finalised after due enquiry and therefore reopening of the matter under Section 28 was barred by time as there was no suppression or under -valuation in the matter.