TaxTMI 
TaxTMI 
2008 (6) TMI 451
X X X X Extracts X X X X
X X X X Extracts X X X X
....opiers. The appellant, M/s. Kestrel Coats Pvt. Ltd., a 100% Export Oriented Unit (EOU), were permitted to set up trading unit for carrying trading activities in used photocopiers, reconditioned photocopiers, toners, components/spares under letter of permission (LOP) dated 14-6-2001 of the Development Commissioner. By letter dated 20-6-2001 "re-conditioned photocopiers in CKD/SKD conditions" was added to the list of items. The permission/approval was to remain valid for two years unless extended in the meantime. It is relevant to mention here that the then existing EXIM Policy (1997-2002) provided for setting up of Trading units under the Export Oriented Unit (EOU) Scheme. The appellant in pursuance of the said letter of approval imported 15....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... It was also alleged that the trading units were not eligible for duty exemption in the absence of a corresponding notification from 24-6-2002. Further, the provision relating to setting up trading units under the Export Oriented Unit Scheme had been withdrawn/deleted in the new EXIM Policy (2002-2007) in force from 1-4-2002. 5. The appellant accordingly was served with show cause notices against proposed confiscation of goods under Section 111(d) as well as 111(m) of the Customs Act. Clause (d) of Section 111 provides for confiscation of goods imported in contravention of any prohibition imposed by or under the Customs Act or any other law for the time being in force. Clause (m) provides for confiscation of goods which do not corre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....therefore, the goods in question were not liable for confiscation under that provision. As stated above, under clause (d) of Section 111, goods imported can be confiscated if they are imported "contrary to any prohibition imposed by or under this Act or any other law for the time being in force". The contravention alleged in the instant case was of a prohibition contained in the new EXIM Policy in force from 1-4-2002. The erstwhile EXIM Policy, however, stipulated setting up trading units under EOU Scheme and it is not in dispute that by Letter of Permission dated 14-6-2001, the appellant was permitted to set up unit for carrying trading activities with respect to used photocopiers and re­conditioned photocopiers in CKD/SKD conditions. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rseas supplier, in good faith, and there was no deliberate misdeclaration so as to attract the mischief of clause (m). He submitted that the appellant accepted the value appraised by the Chartered Engineer, which shows that there was no intention to misdeclare the value. Counsel relied on the order of the Supreme Court in the case of Jost's Engg. Co. Ltd. v. Collector - 1997 (89) E.L.T. A115. 9. It may be clarified here that by the said order, the Supreme Court summarily dismissed the appeal of the Department against the decision of the CEGAT dated 16-9-1991 in the case of Jost's Engg. Co. Ltd. in which it was held that Customs authorities may accept or reject the invoice price but for that reason they cannot impute suppression of f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....be attracted and the case would fall within its ambit. It is to be kept in mind that the appellant did not challenge the value of the goods as appraised by the Chartered Engineer and accepted by the Proper Officer. Even before us, learned advocate was not in a position to take a different stand. He submitted with respect to old/used items, it is not possible to declare the exact value. We agree that there is possibility of some variation in the assessment of the value and there may be two opinions on the point. In the instant case, however, considering the extent of variation in the value as declared by the appellant and the value appraised by the Chartered Engineer which is evident from the following table, it is not possible to go by ipse....