GOENKA INDUSTRIES Vs. CC, NHAVA SHEVA

JUDGEMENT

(1.) THE appellants filed two Bills of Entry dtd. 3.12.1998 describing the goods as "Viscose, Rayon, Filament Yarn - -substandard, no claim basis of Denierage 50 to 500 and 75 to 120." All the relevant documents were annexed to the said Bill of Entry and the price declared was US $ 2 per kg. (CIF). The goods were subjected to examination and assessed provisionally after enhancing the value to US $ 2.25 per kg. on the ground that the said party had earlier imported identical goods from the same supplier at the rate of US $ 2.25 per kg. Subsequent samples were drawn and sent to SASMIRA for testing the grade of the yarn. As per the test report obtained from SASMIRA the goods were of first quality as against the sub -standard declared by the importer. It was further found by the custom authorities that yarn of first quality grade have been imported by the other importers at higher value ranging from US $ 2.49 to 2.70 per kg.

(2.) BASED upon the above facts, the appellants were issued a Show Cause Notice proposing to enhance the value of the imported yarn to US $ 2.70 per kg. and confirm the differential duty against them. The notice also proposed confiscation of the goods and imposition of penalty upon the appellant on the alleged misdescription and undervaluation of the goods. The said Show Cause Notice was adjudicated upon by the Commissioner of Customs, who relying upon SASMIRA report, held that the goods were of first quality and not sub -standard, as declared by the appellant. As regards the appellants' contention that the minimum price of US $ 2.25 per kg. at which they had earlier imported the same goods should be adopted, he observed that the import pertains to the same importer who had mis -declared the goods in the present case and as such it cannot be said that the earlier price declared by them was correct. However, he accept the appellants contention of picking up the lowest price and accordingly adopted the value of the yarn as US $ 2.50 per kg. He also confiscated the goods covered by the two Bills of entry with an option to the appellants to redeem the same on payment of redemption fine of Rs. 1.50 Lakhs in each case. Penalty of Rs. 60,000/ - was imposed in respect of each Bill of Entry under the provision of Section 112(a) of the Customs Act, 62. The above order of the Commissioner is impugned before us.

(3.) HE also draws our attention to the invoice issued by the supplier which shows that the goods are of non standard grade and the packaging list issued by the supplier reveals that the goods were of different weights and was of different denier and specification. As such, he submits that the same was in the nature of odd lot of goods and cannot be compared with the first quality importation made by other importers as held by the Hon'ble Supreme Court in the case of Eicher Tractors Ltd. v. CC Mumbai -2000 (122) 321 (SC) :, 2000 (93) ECR 579 (SC). He also submits that as per the strict standard of quality in Japan, the consignment in question was declared as sub -standard because they were not workable on Air Jet looms and fully automatic rapier looms which run on 400/500 RPM whereas in India they run on maximum 70/80 RPM. As such he has contended that the goods were of sun -standard quality and there was no mis -declaration as regards the description or value.