1989 (10) TMI 163

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....land was produced alongwith Bill of Entry for clearance. The goods were described in the B/E as "One No. Secondhand Automatic Machine Type SPM-61 complete spares, Accessories etc. and the total value was shown as S. Frs. 68,000 c.i.f. Bombay". The clearance of the goods was sought against import licence No. P/CG/1921925, dated 31-3-1980 issued for import of one No. Automatic Machine Type No. SPM-61 to produce Ball Pen Tips starting from X-10, Blanks Machine etc. (Secondhand) and issued for Rs. 3,36,049/-(equivalent to S. Frs. 68000). At the time of clearance, on examination by the Department, the imported machine was found to be Brand New and the goods were under valued. Hence proceedings were initiated for charge of mis-declaration of valu....

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....ri J.S. Agarwal who appeared for the appellants that the machinery of 1978 was sold by the Manufacturer in the year 1978 and in turn the same was sold to the appellants in the year 1982. When once the Additional Collector has admitted that this was a secondhand machine he was not justified in determining the value as value of new machinery. Further learned counsel submitted that either he ought to have accepted the price shown in the invoice as correct value of the secondhand machine in the absence of contemporaneous evidence or proportionately he ought to have given deduction towards depreciation when he has adopted the value for the machinery in the year 1978. He submitted that year of make and change of hand are sufficient proof to show ....

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.... for evasion of duty and the appellants have genuinely obtained the goods at the price evidenced by the correspondence. Under these circumstances, he ought to have brought some positive proof on record to show the deemed value of the goods in question at the relevant point of time instead of adopting the value of the new machinery of 1978 to the secondhand machinery in 1982. Decided cases on the subject make it abundantly clear that the agreed price between the parties, though genuine, would not be the concluding factor with reference to assessment for customs duty since under Section 14(l)(a) of the Customs Act, 1962, duty will have to be levied on the deemed value as referred in the Section. However, the onus of proving mis-declaration re....