GEMCO Vs. CC

JUDGEMENT

(1.) THIS appeal is directed against the order in original No. 11/95 dated 22/25.9.1995 of the Commissioner of Customs and Central Excise, Jaipur. The order was passed with regard to import of rough synthetic emerald weighing 228.21 ct. by the appellant through post parcel JP No. 51979/7/95. The import was from M/s. Rising Gems Tahi Co. Ltd. and the parcel contained an invoice which declared a value of 36.51 US $ @ 0.16 US $ per ct. The invoice also mentioned that the goods were "free trade sample of no commercial value". On examination of the goods by Customs, it appeared that declared value was too low. Therefore, they obtained the opinions of the two experts in the customs panel of experts. One of them Shri Gian Chand Lodha valued the goods at 18 US $ per ct., while the other Sh. Dulichand Tak valued at 16 US $ per ct. At the assessed value, the consignment required import licence. Accordingly, the appellants were asked to produce import licence. They were also liable to action for misdeclaration of value. They waived show cause notice and requested for a decision of the case after giving them a personal hearing vide their letter dated 13.7.1995. After the hearing, the Commissioner accepted the value of 16 US $ per ct. as advised by the expert and held that the goods were liable to confiscation under section 111(d) and (m) of the Customs Act. He, confiscated the goods and gave the appellant an option to redeem them on payment of a fine of Rs. 60,000/ -. He also imposed a personal penalty of Rs. one lakh under Section 112 of the Customs Act on the appellant. In the appeal and during hearing today it has been submitted that the valuation adopted is not correct. It has also been submitted that the experts who valued the goods were not qualified to value synthetic emerald, as they were dealers only in natural emeralds. It has also been submitted that as the goods were unsolicited trade sample, the appellants are not guilty of violation of import control restriction. They had not asked for the goods and had not paid for the same. The invoice itself make it clear that the item is only a sample. Further, they have been informed by their supplier that the value furnished was only for the purpose of insurance. The appellants have requested for remand of the case for fresh valuation after taking into account the advise of proper experts or the value of goods previously imported. In the alternative, the appellants have urged that the consignment may be returned to the sender.

(2.) AS against this, the learned departmental representative has submitted that the procedure of valuation adopted by the department as well as the action taken against the appellant are entirely according to law and correct procedure. Value has been fixed at the lower of the two values advised by experts. The experts have been notified under a Public Notice issued in 1982. He also referred to the adjudication order which point out that, previously a consignment of comparable goods had been imported at a value of 15 US $ per ct. in 1994. He, therefore, submitted that the valuation compared with previous import. He also submitted that the appellant had held himself out as the importer during the adjudication proceedings. He was also aware of the valuation of the goods and his representative had seen both the valuation reports. During personal hearing also no request was made for return of the goods. The appellant had also not disowned the goods at any stage. He also submitted that there is no merit in the appellant's request for return of the goods as the same has been made only after an adverse order has been passed in the case. He, therefore, submitted that the impugned order merits to be confirmed.