PAPER SUPPLIERS Vs. COMMISSIONER OF CUSTOMS, KANDLA

JUDGEMENT

(1.) THIS is an appeal filed by the appellant against the decision of the Collector of Customs, New Kandla, made in Order -in -Original No.KCH/COLLR/6/91 dated 1.1.1991 whereunder he had enhanced the assessable value from USk 900 PMT to Rs. 1000/ - PMT.

(2.) THE facts of the case are that the appellant imported 180.925 MT of HDPE Tape Grade HS 7023 for which they filed bills of entry dated 22.6.1988. The said imports were made pursuant to the Sales Indent dated 9.11.1987 according to which price was agreed to at US 900 PMT for a quantity of 200 MT to be supplied within the first quarter of 1988. The goods could not be shipped before 31.3.1988. After correspondence the goods got shipped on 12.4.1988 from Antwerp (Belgium). Certain investigations were conducted by DRI resulting in issuance of a show cause notice dated 11.4.1990. It was alleged in the notice that value would be at not less than US 1300 PMT CIF and in view of the undervaluation by the appellant such undervaluation was estimated to Rs. 9,48,491/ - and the attempted evasion of duty works out to Rs. 10,96,484/ -. Accordingly it was alleged that the goods were liable to be confiscated under Section 111(m) of the Act and the excess goods to the extent of Rs. 9,48,491/ - were liable to be confiscated under Section 111(d) of the Act. The appellant replied by its letter dated 9.10.1990 denying he liability. The Collector on the basis of the investigations, viz. statement of the partner of the firm who accepted that the price of HDPE of Belgium origin was at US 1000 PMT. Therefore the value was revised and also the attempted evasion was fixed at Rs. 2,85,870/ - as far as revised, ie. mis -declaration valuation it was fixed at Rs. 2,47,441/ -. He therefore imposed a penalty of Rs. 1,00,000/ -. Hence the present appeal.

(3.) SHRI S.D. Nankani, learned counsel for the appellant argued that the enhancement of the value from US 900 to US 1000 holding that the same was liable to confiscation under Section 111(d), imposing personal penalty of Rs. 1,00,000/ - is absolutely wrong in law. He stated that eh department has enhanced t he value of the HDPE not on the basis of contemporaneous import but only on the basis of deposition of Nirmal Surekha. He argued t hat Surekha's statement should be taken more as an escape, via. only out of (SIC) desperation and to have peace. He also invited our attention to the reasoning of the Collector, via. non -mention of the no. and dat e of the contract in the import documents as well as the statement of Surekha. As far as the non -mention of the number is concerned, t he learned counsel argues there is no specific finding given by the Collector that the said import was not shipped pursuant to the Sale Indent dated 09.11.87. The doubt cannot substitute the evidence. As far as the statement of Nirmal Surekha regarding friendship of the importers is concerned, they were never being suppliers were not related to each other and the price was for sole consideration,. It was also emphasized that the appellant or the sellers were have neither interest in the business of each other and the transaction was at arms length. Therefore, the enhancement of value to US 1000 is wrong. It was stated that the Appellant has acted bonafidely. As against this learned DR, K.M. Mondal adopts the reasoning int he impugned order.