PHOENIX OVERSEAS LTD. Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) THE matter called. None is present for the appellants. It is seen from letter dated 4 -5 -1999 from Advocate for the appellants that they have prayed for decision on the appeal on merits.

(2.) THE appeal arises from Order -in -Original dated 30 -4 -1992 passed by the Additional Collector of Customs, IGI Airport, New Delhi. By the said order a penalty of Rs. 40,000/ - was imposed on the present appellants apart from confiscating plastic shoe lasts imported by them but allowing redemption on payment of Rs. 25,000/ -.

(3.) IT is contended on behalf of the appellants that the Addl. Collector had wrongly rejected the appellant's submission that the value of imported goods had been revised to LIT 9,625,000 after negotiations. They claim that the FAX/Telex messages dated 1 -11 -1989 and 6 -11 -1989 and letter dated 13 -12 -1989 would show that the appellants were in correspondence with the foreign supplier as a result of which a revised invoice dated 12 -10 -1989 issued in supersession of the earlier invoice came to be issued confirming the reduction in the price of the goods. Appellants also contended that the Addl. Collector had not asked for any further corroboration from the appellants during the proceedings and if the same had been asked for, the appellants would have produced evidence from their Bankers through whom remittance had been made in respect of the goods in question. Appellants also dispute the observations of the Addl. Collector that they had not disclosed that the prices were re -negotiated with the suppliers. In this connection, the statement dated 20 -11 -1989 given by Shri D.N. Kalsi, Managing Director has been referred to. On the conclusion drawn by the Addl. Collector that the goods were delivered to the appellants at the price at which the transaction had taken place through the Bank, it is contended that this was not correct inasmuch as on the date when the Bill of Entry was filed and on the date when the goods were taken delivery of, the price of the goods had already been reduced by the foreign suppliers as evidenced from FAX/Telex message dated 6 -11 -1989. Since the Bill of Entry was dated 9 -11 -1989, the date of reduction in the price as shown in the FAX/Telex message dated 6 -11 -1989 should have been taken into account and as proof thereof, FAX copy of the invoice attached with the Bill of Entry at the time of its filing had been enclosed which has not been taken into account by the adjudication authority. Appellants also questioned the observation made in the impugned order to the effect that although the subsequent negotiated price could be relevant for the purpose of remittance of foreign exchange, the same cannot have any bearing on the assessable value as per provisions of ' Section 14 of the Customs Act. Appellants contend that the subsequent - negotiated price was equally relevant for purposes of Customs Act as in the case of remittances under the Foreign Exchange Regulations Act. They have also contended that the Tribunal judgement in the case of Mehta Impex reported in : [1990 (45) E.L.T. 249] relied on by the Addl. Collector was distinguishable since in the said case the assessee had failed to produce the genuine invoice issued by the foreign supplier and which had later been obtained by the DRI. Further, appellants also argued that the Addl. Collector has failed to comply with the directions of the Tribunal in its remand order for considering letter dated 13 -12 -1989. The said letter had confirmed the reduction of the price as well as the fact of re -negotiation. On these submissions, appellants seek the quashing of the impugned order.