GOYAL IMPEX AND INDUSTRIES Vs. C.C.E.

JUDGEMENT

(1.) APPELLANT is an importer of Acrylic Staple Fibre. They imported a consignment of 19391.300 kgs. of above substance from M/s. Fisipe Fibras Sinteticas De Portugal SA. This was covered by Invoice No. ME/98002001/98 dated 16.2.98 and Bill of Lading dated 31.10.97. The goods were invoiced at U.S. 1.200 per kg. GIF Mumbai. The Total value declared for the consignment was US 23509.56 (Rs. 9,16,873) CIF. Objection was raised by the Appraiser CIF, Ludhiana stating that the value declared is low and that idential goods were assessed and cleared at US 1.75 per kg. CIF against Bill of Lading dated 10.10.97. On the basis of this objection notice was issued to the appellant to show cause why duty should not be levied on the total value calculated at U S 1.75 per kg. on the total quantity cleared. Importer, namely the appellant filed his written objection and documents, to support his stand. They were heard on the issue. Thereupon the Commissioner held that the price of the goods imported was US 1.75 per kg. CIF and rejected the appellant's contention and confirmed the demand of differential duty on the basis of the higher value. As result of this finding the appellants were directed to pay a total sum Rs. 13,81,710.00. Aggrieved by the above order passed by the Commissioner, this appeal has been filed.

(2.) ALONGWITH the appeal the appellant moved an application for waiver of pre -deposit of Custom duty of Rs. 13,81,710. The Tribunal by Order dated 16.10.98 dispensed with the requirement of pre -deposit for the entire amount of Customs duty and stayed recovery of the same during the pendency of the appeal.

(3.) LEARNED Counsel representing the appellant raised the following points for our decision: Goods were imported as per Invoice No. ME/98002001/98 dated 16.2.98. These goods were invoiced at US 1.200 per kg. CIF Mumbai. The total value declared for the consignment was Rs. 9,16,873. Appellant also imported four consignments covered by Bill of Lading dated 31.10.97, 21.11.97, 28.11.97 and 5.12.97. The differential duty involved in the said four consignments is Rs. 11,16,710. The consignment was shipped by foreign supplier on their own. Appellant did not accept the documents as the price of fibre decreased in the International market. Consequently, bank returned the documents to the supplier and thereafter foreign supplier negotiated the price with the appellant and the deal was finalised by 10th February 1998. Accordingly goods were sold to the appellant at US 1.200 per kg. on 90 days D A basis. It is the further contention of the appellant that price of Acrylic Staple Fibre in the International market was ranging between 1.05 US and 1.25 US per kg. subject to quality and type factor. Foreign supplier, it is argued, sent the goods without any order being given by the appellant in December 1997 and the seller was incurring heavy demurrage and detention charges. In such a situation, the seller renegotiated the documents on prevailing rates of similar goods and agreed to give 90 days credit to avoid further losses on account of demurrage and detention charges. Seller had shipped the goods covered by Bills of Lading dated 31.10.97, 21.11.97, 28.11.97 and 5.12.97 without consent of the appellant. The appellant had never opened any Latter of Credit in respect of those goods either. Those goods were also purchased by the appellant on re -negotiation at the rate of US 1.20 per kg. In the above circumstances it was argued that the Commissioner was clearly in error in levying duty as per order impugned in this appeal.