TaxTMI 
TaxTMI 
1987 (2) TMI 318
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....lory 25-3-83 Raya Fortune 23-4-83 Portoroz 20-4-83 A total quantity of 3,01,393 yards was imported and the value declared was Rs. 10,86,375/-. 29 Bills of Entry were filed. Originally details of 13 import licences issued under 0.1 and 0.2 of Appendix 17 of Import Policy AM 1983 were given in respect of 5 Bills of Entry of appellants M/s East Punjab Traders. These were subsequently withdrawn and mention was made in a statement by Shri Adarsh Veer Jain representing the appellants of 34 others licences. No details of debit to these licences Bill of Entrywise amongst the 29 Bills of Entry were given. The Special Investigation and Intelligence Branch of Bombay Customs House had gathered intelligence during the course of investigations conducted in another case of import of similar goods from the same suppliers that in respect of the 29 Bills of Entry filed in this case, there has been falsification of the description of the goods, invoice values and date of shipments. The Bills of Entry were, therefore, taken over for investigation. During the course of investigation the officers also searched the office premises of the three appellant- firms at Bombay and certain docu....
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.... the goods imported were normally treated as "dress and shirting materials" and these were not lining materials as indicated in the import documents including the Bills of Entry filed by the importer. This was based from certain trade enquiries made with garment firms which confirmed that the samples shown to them were not lining material but dress and other garment materials. The imported goods were having finish on both sides with self-design and also had checks. The Custom House, therefore, held that these were dress materials and accordingly were fabrics made from man-made fibre/yarn covered the import of which was banned under Appendix 4 of the Import Policy for April-March 1983 and April-March 1984. Therefore, the licences presented by the importers for the clearance of the goods which were R.E.P. licences issued under Appendix 17 for Export Products group 0.1 and 0.2 namely, lining material and inter-lining material excluding nylon taffera coated fabrics, were not valid to cover these man-made fabrics. A show cause notice was, therefore, issued on 12-4-84 in respect of 10 Bills of Entry filed on behalf of M/s. East Punjab Traders. As the Bills of Lading appeared to have been....
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....l number of the 29 consignments. Based on this material a supplementary show cause notice was issued on 16-5-84 covering the Bills of Entry included in the original show cause notice. The charges were thus the goods imported are not lining materials but polyester fabrics which were covered by Item 25 of Appendix 4 of ITC Policy AM 1982-83 that the Bills of Lading were entedated, and, in the addendum to the show cause notice, the charge was regarding misdeclaration of the value to the extent of Rs. 7,08,744/-resuhing in loss duty of Rs. 9,56,804.40. According to the Department the net price should have been 87.5 Cents as against the declared value of 35 Cents. Though the reply to the show cause notice was in respect of ten consignments, at the time of personal hearing the counsel for the appellants requested that all the 29 consignments should be adjudicated together and waived the show cause notice in respect of the 19 remaining consignments on behalf of M/s. Janata Traders and East Punjab Traders and P.C. Jain and Co. It was said in their reply that the goods imported were lining material and not man-made fabrics. They relied upon the letters to this effect gathered by them from s....
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.... the material imported was lining material or not the learned counsel pointed out that there was no definition of 'lining and inter-lining material' in the Import Policy. In this connection he referred to the evolution regarding the item 'lining material' in the Import Policy. In the Policy AM 1975-76 the description of the item was 'lining and interlining material made of cotton, rayon, synthetic or mixed fabrics coated and/or uncoated (provided samples of materials to be imported are approved by the Textile Commissioner prior to Import)'; a change was made in this description in Policy AM 1978-79 when it was described as 'lining and interlining materials'; this description continued in 1979 and 1980 Policy and in the Policy AM 1980-81 the description was 'lining and interlining materials excluding nylon taffeta coated fabrics'. This description again continued until the Policy period AM 1984-85 when on 21-2-1984 the description was amended to read as 'lining and interlining material of width not exceeding 87.5 cm excluding nylon taffeta coated fabrics'. He pointed out that the concept of width for lining material was brought in only in February 1984 and that before that period an....
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....s not having the normal width of the lining material. The width restrictions in the Policy were brought into effect subsequent to the import and cannot be retrospectively applied to the consignment imported by the appellants. Further the reliance placed on cost criterion by the Collector is not a conclusive criterion. While the Collector has also applied the criteria of texture, finish and thickness, he had nowhere indicated what are the norms of these aspects in a lining material. On the contrary the appellants have given the authority of technical experts like Shri Kohli and Dr. Shenoy" who have given their opinion that the material can be used as lining material and the letter of the Textile Commissioner to the Customs, Madras supporting their view. The counsel urged that end-use is irrelevant and cited the case law 1983-E.L.T.-1566(S.C.) wherein the Supreme Court had held that where there is no reference to the use or adaptation of the article, the basis of end-use for classification under Tariff Entry is irrelevant. He further relied upon the decision of the Madras High Court in Writ Petition No. 61/75 in the case of Kerala Food Packers v. C.B.E.C., where the Court had held th....
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....ed through Bombay Customs and the Department had accepted the value which were similar to the one quoted by the appellants. The invoices and Bills of Entry relating to such instances were also filed during the hearing before the Tribunal and taken on record. It was stated that these could not be produced before the Collector because the appellants were not in possession of these at that time. The Collector had given a finding that the value arrived at by him was the value under Section 14(1)(a)of the Customs Act but for such purposes value of similar goods at the time and place of import in India has to be established. In this connection the counsel placed reliance on the decision of CEGAT reported in 1986-(23)-E.L.T.-507 that the Department should prove the charge of under invoicing by making necessary investigation at major ports with regard to the price at which goods of like kind and quality were being imported through different ports. It has not been done in this case and reliance has been placed only on Export Declarations filed in Japan. The appellants have given documentary evidence to show that the price had been arrived at after negotiation over the period from 20-1-83 to....
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.... M/s. Adya Industries have not filed an appeal it does not mean that the importer who has a letter of authority ceases to have any right. He is the person who has filed the Bills of Entry and is responsible to the Customs Department. He will have a lien on the goods and the Customs have treated him as an importer in terms of Section 2 (26) of the Act. The question of ownership of these goods, according to the counsel, is immaterial as far as the proceedings under the Customs Act are concerned. It is a matter purely between the licence holder and a IA holder. Para 383 of the Hand book on Import and Export Policy states that the provision of Section 147 of the Customs Act will apply. The validity of the import will depend on whether there is a valid licence to cover the import and ownership is not relevant. The counsel finally pleaded that in any event the absolute confiscation of the goods and the quantum of penalty on the appellants was harsh and excessive. 5. The arguments of the Department were put forth by the learned S.D.Rs. Shri Ajwani and Sh. Doiphode. It was pointed out that Export Declarations filed in Japan relating to the goods clearly show that they are relatable to t....
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....ts participated and it is now too late to raise any objection of their validity as evidence. He referred to the CEGAT decision (in para 25) in the case of "Orient Enterprises v. Collector of Customs Cochin" reported in 1986-(23)-E.L.T.-507 regarding acceptability of a statement as evidence in adjudication proceedings. Relating to the submissions of the appellants' counsel on Section 139 of the Customs Act admittedly are applicable to Court proceedings the S.D.R. pointed out that when the Section required the Courts to presume the correctness of documents it should be more so for the adjudication authorities. Even the Supreme Court had laid down that adjudication authorities can lay down their own procedures. The documents obtained by the Customs Officers from Japan have all been copies of original office copies except for the Export Declarations and notarised. As regards the question whether the goods are lining, material or not, the learned S.D.R. submitted that the definition in the Fairchild's Dictionary of Textiles would show that it is generic term covering many materials and the Collector had found that these are thinner than the outer garment materials and the cost was also ....
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....d, there is difference in the value declared as in the Export Declarations at Japan and in the Bills of Entry in India relating to vessel s.s. Portoroz. The invoices have main numbers allotted and split up numbers when presented to Indian Customs in which the prices are lower than those shown in the Export Declarations. In view of the fact that the markings, quantity, name of the consignor and consignee, vessels name all tally with the goods imported the value declaration in the Export Declarations as per requirements of Japanese Customs law can validly be taken as value for assessment purposes. Further the copy of the book entitled "Japanese Law and Regulations" concerning customs duty and customs procedures containing the Japanese Customs Law had also been given to the counsel for the appellants for study and preparation of this case. 7. Rebutting the appellants' argument that the Export Declarations was unreliable because of shipment from Osaka whereas the documents obtained from Japanese Customs the S.D.R. pointed out that Kobe and Osaka were twin ports and Osaka is indicated as port of shipment. As for the claim by the appellants of the supply of the same goods at similar p....
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.... only held that the Department should have made enquiries in other ports whereas here thorough enquiries have been made regarding the under-valuation. Indisputably man-made fabrics are banned for import under Appendix 4 of AM 1983 Import Policy and hence the present import which is found to be of man-made fabric and not lining material, there cannot be a contemporaneous import of banned item for which enquiries can be made regarding value. As regards the contention that in inspecting the goods and passing conclusions on his own the Collector having acted as a Judge and witness, the S.D.R. cited case law 1986-(23)-E.L.T.-116 to hold that the Collector was well within his right and to examine the goods and come to his own conclusions. Rebutting the argument of the counsel for the appellants that the end-use is not relevant, the S.D.R. contended that in this case the very description of the material as lining material shows its use and the use to which it is adopted and hence it is very relevant in this case. The question would be whether the material would be originally used as lining material. Just because a few may use as lining material, it would not become a lining material. He c....
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....at on the date of import the goods were banned. As regards the issue whether the goods imported are lining material or not the Policy description in the Import Policy over the years shows that only nylon taffeta coated fabrics were excluded and the width concept for lining material brought about in 1984 cannot be made applicable to the appellants' import which was prior to this amendment of 1984. The material imported is also within the range of width that the Collector himself has laid down for the lining material and his finding that it was not the normal width is, therefore, contradictory. Having accepted the various textile meaning like, Fairchild's Dictionary of Textiles, there was no scope for personal inspection of the material by the Collector and for passing the order based on personal inspection and his own experience. The finding of the Collector is, therefore, biased. Inspection, the learned counsel argued cannot take the place of evidence and in this connection he cited the case of 'Koisam Kumar Singh and Another v. State of Manipur - 1986-(25)-E.L.T.-145 (S.C.) - wherein the Supreme Court held that the "views of adjudicating authorities cannot take the place of eviden....
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....out that the Collector had rejected the affidavit filed by the appellants from their shippers stating that they have supplied the same goods at US $ 0.30 to 0.35 per yard CIF to other countries, merely On the ground that the original of the affidavit had not been produced. This document in original was produced before the Tribunal during the hearing. The affidavit itself is a sworn document and is a piece of evidence. The Collector did not ask for the invoices nor did he cross examine the deponent. The contents of the affidavit should have been accepted as true. The Collector ought to have given consideration to the various documents produced by the appellants regarding the correctness of the value declared by them and should have accepted the value declared as assessable value under Section 14(1)(a). Thus there was no case for confiscation of the goods and imposition of personal penalty on the appellants. 12. We have given careful consideration to the submissions made by the learned counsel Shri Habibullah Badsha and the learned S.D.Rs S/Shri Ajwani and Doiphode. 13. One of the charges in the show cause notice is regarding falsification of the dates in the Bills of Lading an....
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....ian." They have further produced the opinions in their favour given by Shri Kohli and Dr. Shenoy as also the letter from the Textile Commissioner to Madras Custom House. They have also produced certificates from several persons in the trade like tailoring establishments stating such material is used as lining material. They have put forth the contention that the amendment in the description of the item in Appendix 17 of the Import Policy which came into effect on 21-2-1984 specifying width of 87.5 cm for lining material was subsequent to their imports, and cannot be retrospectively applied. The Collector's findings have also been attacked as being based on his own experience and as being contradictory in certain respects and as being vague in the sense that he has not indicated what should be the criteria of texture, finish and thickness of lining material. 15. Admittedly the definitions of lining material appearing in Fairchild's Dictionary of Textiles and Mercury Dictionary of Textile terms would show that a wide range of materials could come within the purview of definition as lining material. In respect of the certificates from Shri Kohli and Dr. Shenoy it is observed tha....
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....for and obtained any clarification in this matter from the C.C.I.E. 17. The appellants have produced certificates from several units saying such material is used as lining material. But the Custom House had also obtained certificates from some tailoring establishments stating that material is dress material. The counsel for the appellants before the Collector had objected to this on the ground that the persons who gave the opinions had not been shown the goods from the actual consignments. The Collector had upheld this objection and so, by the same logic, the certificates produced by the appellants cannot also be relied upon. The Collector has also pointed out certain discrepancies in these certificates In paras 42 to 44 of his order which are significant. In the result, the certificates produced have rightly been discarded. 18. The appellants claim is that the description of the item at the material time of import in the Import Policy applicable fully covered the 100% polyester lining material imported by them, as the material is not Nylon or Taffeta coated fabrics which only are excluded. They have further argued that the width criterion specified in the Policy on 21-2-1984....
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....nt's case rests on the Export Declarations filed before Japanese Customs, copies of which had been obtained from the Steamer Agents. The appellants have argued that the Collector was wrong in holding that these are valid in evidence and their contents presumed true by virtue of Section 139(ii) of the Customs Act, 1962. The Section reads as follows :- "139. Presumption as to documents in certain cases. - Where any document (i) is produced by any person or has been seized from the custody or control of any person, in either case, under this Act or under any other law, or (ii) has been received from any place outside India in the course of investigation of any offence alleged to have been committed by any person under this Act, and such document is tendered by the prosecution in evidence against him or against him and any other person who is tried jointly with him the Court shall - (a) presume, unless the contrary is proved, that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in t....
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....and the source from which they were obtained has also been mentioned in the show cause notice. It has now been submitted that non-examination would not give the documents evidentiary value and that the steamer agents were not the right persons who could speak for the contents of the declaration and that it should have been either the Japanese Customs or the shippers. But this argument now made is not of much avail after having missed the opportunity to establish this contention by examining the steamer agents. The other objection is that the Export Declarations have not been signed by the Japan Customs or by Shipper. However it is seen that the Export Declarations bear serial number and the stamp of Japan Customs, and further, even in some copies of other Export Declarations before Japan Customs produced by the appellants, also apart from similar Customs Stamps, no signature of Customs or shipper is seen. It is not the case of the appellants that the copies of Export Declarations are forged or bogus documents. As for the discrepancy relating to container numbers, it is observed that other particulars regarding names of consignor and consignee, destination, marks and carton numbers,....
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....e shown in the Export Declaration is price at destination Bombay of the goods sold to the appellants. When such price itself has been ascertained enquiries regarding contemporaneous import are not called for, and hence the CEGAT decision in Orient Enterprises case is not comparable and in this connection the case law cited by the learned S.D.R. is relevant (1980-E.L.T.-397) in the case of 'Gujarat State Fertilisers Co. Ltd. v. Union of India and Others' would be applicable wherein it has been laid down while dealing with Section 4(a) of the Central Excises and Salt Act, 1944 that if there is an actual price for the goods themselves at the time and place of sale, that is to be taken as the wholesale cash price. It is also observed that a uniform price US $ 0.35 declared in the invoices covered various types of material like plain fabrics, those with self designs, and those with checks and prints. There is nothing in the correspondence with the supplier to show that the supplier had fixed the same price irrespective of quality which definitely has a bearing on cost. 20. Another reason for accepting the Export Declaration price under Section 14(1)(a) of the Customs Act is that it r....
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....Collector rejected it as the original was not produced. The appellants contend that this is erroneous and have produced the original during hearing before the Tribunal. The argument of the appellants that when Collector had himself placed reliance on photocopy of the Export Declarations, he cannot at the same time reject the suppliers affidavit for want of original, has a lot of force and has to be accepted. However, it was not the sole ground on which he had rejected this evidence as he has also observed, ".......... this price may be that of lining material but not of the textiles shipped as per export declaration." A perusal of the affidavit shows that the description of the goods in the invoice has not been mentioned in the affidavit, which would be relevant for a comparison and also since various kinds of fabrics can be used as lining material. The appellants had produced certain other affidavits from Japanese suppliers to show that the invoice value on their exports were less than the export value declared in the export declarations. The Collector had observed that significant portions in the Export Declarations had been blacked out and had pointed out certain other discrepan....
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....aluation which was included in the addendum to the show cause notice issued subsequently. The material for such a charge had been obtained during the enquiries when following up the charge of filing of back-dated Bills of Lading. Viewed in this background the acceptance by the Custom House of values declared for earlier imports of lining material will not advance the case of the appellants. 23. The appellants have submitted that in regard to the goods clearance of which was sought against the import licence issued to Adya Industries with letter of authority in favour of the appellants, their submission is that in terms of Section 147 of the Customs Act they are entitled to clear the goods through Customs and penalty being proceeding in personam, the fact that Adya Industries on whom personal penalty has been imposed by the Collector have not preferred an appeal, would not be material. The question of ownership of the goods is one purely between the licence-holder and letter of authority holder. It is, however, found that though the licence issued to Adya Industries had been mentioned as one of the licences, no quantity of the imported material had been specifically allocated for....
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.... above modifications, the appeals are otherwise rejected. 28. [Order per : M. Gouri Shankar Murthy, Member (J)]. - To our regret, we are unable to agree with our learned brother Venkataramani on the questions as to whether the Revenue proved beyond any shadow of doubt that - (a) the imported goods are not lining material and, consequently, did not answer the description in the licence; or (b) were not imported under I/Licences which were valid and subsisting; or (c) appellants in these appeals had falsified the description of the goods invoice values or dates of shipment; or (d) there has been any misdeclaration on the part of the appellants either of value or description that would entail confiscation under Section 111 or levy of penalties under Section 112 of the Customs Act, 1962 (hereinafter, the Act for short). 29. Not being goods covered by Section 123 of the Act, the burden rests heavily on the Revenue to prove and establish the aforesaid questions of fact and the benefit of doubt, if any, should, necessarily, go to the appellants in these appeals. 30. The facts had been set forth in sufficient detail by our brother and need not be repeated except to the....
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....s to create an offence or enhances penalties for existing offences retrospectively [A.I.R. 1962 S.C. 1753 - West Remand Electric Distribution Co. Ltd. v. State of Madras and A.I.R. 1977 S.C. 2091 - State of Maharashtra v. K.K.S. Ramaswamy]. The specification of width at 87.5 cm cannot be given a retrospective effect firstly because the intent to give such an effect is not manifest by the use of the appropriate language; and secondly - and this is more important - retrospective effect, if given renders previous imports, offences under the Act entailing confiscation and levy of penalties - one in rem and the other in personum - retrospectively. In the case relied upon by our learned brother (A.I.R. 1979 S.C. 180) an inclusive definition of "paper" in Section 2(a)(vii) of the Essential Commodities Act (1955) came up for construction. On careful scrutiny of the inclusive definition, it appeared that the things mentioned in the inclusive part may not ordinarily be regarded as "paper". Therefore, it was concluded that by the inclusive definition an extended meaning or description is given to the expression "paper". Since an exercise book squarely falls within the dictionary meaning of th....
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....de of "Alpaca, Beatrice Twill, ..... Silk, Rayon, Taffeta, .....". Their main purpose is to impart a fall and a proper shape to the garment, prevent quick wear and tear (paragraphs 34-35 page 19 of the adjudication order - P. 72 of Vol. I of paper books). After citing the authorities, the learned Collector observes - "It is usually a thin lustrous material with a smooth surface usually made of cotton, silk, velvet, satin and such other materials". (c) How did velvet and satin come in although not specifically referred to in the extracts from the authorities cited in paragraphs 34 and 35 of the order? Probably because they are smooth and lustrous. (d) But then, Shri Sharma (of the Department) says, "lining materials" cannot be costly (Para 36 of the adjudication order - Pages 72 and 73 of Vol. I of the Paper Books). And he is right and pertinent (Para 37 of the adjudication order - P. 73 of Vol. I of the Paper Books)'. Can silk and satin, velvet and alpaka come cheap? They are themselves stuff from which suits are made. If they could also be used as lining material, do they come cheaper for use as lining material than for suits? Do the authorities speak of cheap silk and satin....
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.... lining fabrics with finish at both sides" (Paragraph 18 - Page 61 of the Paper Books-I, Vol.I) is finally forgotten in the light of his personal experience gained over a period of year, and on account of "the texture, finish, width and thickness" of the material. (j) Once it is admitted that 100% polyester fabrics can be used as lining material and the goods are polyester fabrics, what is it that renders them unfit for use as such lining material? (i) Their width? - It falls within the range specified (24" to 54"). But, no - their width is 44". It is not the normal width; (ii) Their texture? - Smooth and lustrous - Yes. But, finished on both sides? Lining materials are not. Is it possible that polyester fabrics, alpaca and silk are finished on one side only? (iii) Their thickness? - Thin - but the goods in question are too thin. Are all the goods described in the authorities cited Alpaca, Velvet, Satin, Twill, Rayon and Polyester of identical thickness? (iv) Their crease resistance property? - Unnecessary for lining materials? If 100% polyester can be lining material, can any variety of 100% polyester be non-crease resistant? (k) So much for the Collector's exper....
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....in our records are furnished to you for your information and necessary action- (i) copy of Customs declaration for the consignment obtained by us from M/s. Fujwara Unyu K.K. (the Stevedores)". . (d) It is not clear to us if the documents at Pages 67, 68 and 97 of Vol.III were precisely the copies obtained from the Stevedors by M/s. All and Co. and Pan Ocean Shipping Company or they were copies got made by Shri Sharma from such copies obtained from the Stevedors. If the latter, they are copies of copies. Even so, a copy compared with a copy made by a copying machine is admissible if it is shown that the copy made by the copying machine was made from the original [Illustration (b) to S.63 of the Evidence Act]. The reason for this is that the accuracy of the first copy being insured by the mechanical process, it is not necessary to compare with the original, which it will be taken correctly to reproduce. If it were true that Pages 67, 68 and 97 were copies made from the copies obtained from the Stevedors, there is no evidence to show that the copies with the Stevedors were made by a copying machine. (e) It may be that the strict rules of evidence relating to proof are not app....
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....n enquiry of the Indian Customs, it would appear that the vessel did not touch Kobe at all. The Collector had adverted to this information in paragraphs 72 and 73 at Pages 87 and 88 of the Paper Book-I. How are the declaration at Kobe and shipment from Osaka reconcilable? There is hardly an attempt to explain. (h) Admittedly, the respective invoices have to be filed along with the export declarations. (Article 68 of "Japan Laws and Regulations concerning Customs Duties and Customs Procedures" - referred to in paragraph 110 of the order of the Collector (Page 104 of Vol.I). The Collector says that the "invoice is the supporting documentary evidence of the value." It was agreed before us that the particulars of the quantity in square meters and weight in Kilograms were furnished in the third column in Pages 67, 68 and 97 - of Vol.III - the so-called export declarations. The invoice numbers and the actual quantity in yards imported ship-wise are set out in Page 6 of Annexure 'A' to the order of adjudication [Page 122 of Paper Book. I]. The quantity-wise particulars of the Invoices when juxtaposed with the quantities specified in the so-called export declarations at pages 67, 68 and....
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....mining the price at which goods are ordinarily sold at the time and place of importation under S.14(1)(a). One cannot resort to S.14(1)(b) unless the assessable value cannot be determined under S.14(1)(a) in the first instance. There is enough authority for this. No reason has been furnished as to why the assessable value could not be determined under S.14(1)(a). On the contrary, an assessable value that could be determined only by resorting to the Rules is made to appear to be the one actually determined under S. 14(1)(a). 39. The decision in 1980 E.L.T. 397 (Gujarat State Fertilizers Company Ltd. v. Union of India) is one upon the construction of S. 4 of the Central Excises and Salt Act, 1944, which, it is apparent, is materially different from S. 14 of the Customs Act, in that it speaks of "a normal price at which such goods are ordinarily sold by the assessee" himself rather than "the price at which such or like goods are ordinarily sold" (S.14 of the Act) not, necessarily by the assessee. 40. Once the copies of the so-called export declarations at Pages 67, 68 and 97 of Vol.III are cast aside, there is no other evidence adduced by the Respondent to establish the assessab....