SHAKTI OVERSEAS COMMERCIAL Vs. COLLECTOR OF CUS.

JUDGEMENT

(1.) THE appeal challenges the Order -in -Appeal No. 492/90 -BCH, dated 12 -3 -1990 passed by Collector of Customs (Appeals), Bombay upholding the order -in -original dated 24 -1 -1989 passed by Deputy Collector of Customs, Air Cargo Complex, Sahar, Bombay whereby the latter had confiscated a consignment of Vapo Print Transfer Paper imported by the appellant from Taiwan on the ground that the value thereof had been misdeclared. The import was of 23,550 sheets and the invoice dated 15 -11 -1988 produced for the clearance of the goods showed the price as US 0.15 per sheet FOB Taiwan. The value appeared to be low and the Customs House issued a show cause notice proposing enhancement of price on the basis of the price of US 1.75 per sheet FOB Taiwan which price was as per the proforma invoice dated 20 -10 -1988 of another supplier from Taiwan and a quotation dated 4 -10 -1988 from a third supplier from the same country. The declared value of Rs. 59,673 / - was enhanced to Rs. 6,90,851/ - and the duty sought to be evaded by the appellant by misdeclaration of value was computed as Rs. 15,07,603/ -. Appellant sent their letter of explanation received on 22 -12 -1988 contesting the enhancement of value and the proposed action but indicated that they were aware of similar goods having been valued at US 0.35 each C and F in the case of Sumangal Enterprises. They pleaded for adjudication of their case in the light of the said decision and did not request for personal hearing in the matter. The case was accordingly adjudicated by the Deputy Collector applying the rate of US 0.35 instead of US 1.75 as proposed in the show cause notice. The goods were confiscated but option was given for their redemption fixing the fine in lieu of confiscation of Rs. 1 lakh. The appeal before the Collector (Appeals) being unsuccessful, appellant has filed the present appeal.

(2.) SHRI B.B. Gujral, learned Counsel for the appellant submitted that the Collector (Appeals) had passed the impugned order without disclosing to them the evidence relied upon. He did not consider the quantity imported in the compared imports. Both the Deputy Collector and the Collector (Appeals) had passed ex parte orders without hearing the appellant. The order -in -appeal while referring to innumerable instances of imports at US 0.35 had not given any reference to particular imports. Appellant has been regularly importing the subject goods at the same price. They had produced 40 bills of entry. Learned Counsel then submitted that the fine imposed was excessive and out of proportion to the value of goods. In the case of Sumangal Enterprises referred to by them, the value was enhanced from Rs. 16,537/ - to Rs. 29,265/ -and the redemption fine was fixed at Rs. 8,000/ - only. Confiscation and imposition of fine under Section 111(m) of Customs Act ordered by the Deputy Collector can be ordered only if there is mens rea. There was no foreign exchange remitted beyond the invoice value. He cited the following Tribunal decisions : -

(3.) REPLYING to the submissions, Shri Mohammed Ali, learned Departmental Representative supported the orders of the authorities below and stated that the value adopted for assessment was based on actual imports of same goods of Taiwan origin supplied by the same supplier. The goods imported were of comparable quantity. Appellant had mis -declared the value and the same has been correctly revised by adopting the price of similar supplies. He justified the enhancement of value and confiscation and the quantum of redemption fine imposed. He relied upon the following decisions : -