TaxTMI 
TaxTMI 
1998 (11) TMI 671
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....made comprised of predominant acrylic scrap described as above. The importation was made under 59 Bills of Entries during the period 9-5-1994 to 22-4-1995. The export of the garbage bags took place under the cover of 10 shipping bills between 28-3-1994 to 16-5-1994 with the one consignment having been exported to Singapore and the remaining to U.A.E. The product quantity exported was 22,000 Kgs and valued at Rs. 1,68,85,800/-. The foreign exchange in question came to be repatriated between 23-5-1994 to 6-3-1995. On enquiries, the authorities felt that the plastic garbage bags exported had been grossly over-valued while the imported materials i.e. LDPE and polypropylene and acrylic scraps had been undervalued. The Consignment which arrived during May, 1994 therefore were taken up for examination and the material was found to be acrylic sheets, acrylic plastic sheets and 53,000 pieces of acrylic photoframes and 28,000 MT acrylic scrap. Some acrylic scrap thereof on search of the appellants factory premises was also seized. Along with this scrap plastic garbage bags which were found in the factory were also seized. After enquiry, the charge framed against appellant were that the plast....
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....ad been held against the appellants stated that the appellants are required to answer the charge in respect of the following :- (a) The exporters have exported plastic garbage bags using only LDPE materials and have not used any Acrylic plastic scrap or PP scrap in the manufacture of such plastic garbage bags exported by them under the aforesaid DEEC advance licence. Acrylic and PP scrap are not allowed as per the Import and Export Policy, 1992-97 read with Customs Notification No. 203/92, dated 19-5-1992 as amended. (b) The exporters have disposed of the goods even before completion of the export obligation, as admitted by them, and before the realisation of the export proceeds, as such, the exporters have violated Condition No. (vi) of the Customs Notification No. 203/92, dated 19-5-1992 as amended and therefore, the exporters are not eligible for DEEC benefits and the goods are liable for confiscation under the provisions of Section 111(o) of the Customs Act, 1962. (c) The exporters are also liable to pay duty on the past clearances which have been already cleared duty free, ....
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....connection, he referred us to Para 47.7 of the Policy. He has pleaded that the appellants could import the relevant plastic material for the exported item of plastic garbage bags and amongst them plastic item so allowed for import the restriction applicable was in respect of sensitive items enumerated in the policy and these could be imported only up to the limits prescribed. He has pleaded that in terms of Para 47 of Import & Export Policy as above while LDPE and Polypropylene have been shown to be sensitive items, acrylic plastic material was not mentioned as one of the sensitive items. He pointed out in the case of appellants licence even in respect of LDPE and Polypropylene no limits as such had been prescribed. He has pleaded that in terms of Para 110 of the Hand Book of Procedure, flexibility has been provided for importation of any one of the items allowed for import except for the sensitive items which had been mentioned in the policy. He has pleaded that the Circular No. 8/94, dated 20-7-1994 applicable to advance licences and also PL Circular No. 63/95 clearly provided for flexibility to import anyone of the raw materials specified in the import licences, subject to the c....
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....tion, he referred us to Paras 27 and 35 of the judgment cited supra which are reproduced below for convenience of records :- '27. It is thus clear that when the high-powered committee granting the licence after applying their mind having issued the licence for the import of the materials, it cannot be said that this import had contravened any of the provisions of the Customs Act, 1962. Reliance was also placed on a decision of the Bombay High Court reported in 1990 (49) E.L.T. 190. At Page 193 the Hon'ble High Court held as follows :- "........In my view, the Customs authorities have no jurisdiction whatsoever to sit in appeal over the certificates which have been granted by the Director General of Technical Development or the Director of Industries, as the case my be, and come to their own conclusion. These certificates are binding and conclusive upon the Customs authorities, save and except, when it can be contended that these certificates have been obtained by fraud or under some mistake. In the present case, it is not the case of the Respondents that the certificates which have been obtained by the Petitioners and copies of which are annexed to the Petiti....
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....t with the entry made under the Customs Act, 1962, shall be liable for confiscation. In this case there is no question of value involved. But the learned Collector held that the appellant had given a declaration stating that the goods covered under the invoices are imported for the purpose of manufacturing goods/replenishment of materials used in the manufacture of goods or execution of the export order. The learned Collector held that the CRCA sheets in question could not have been used for manufacture of the bicycle parts which were exported by the appellants. But in the declaration what is stated is that the goods covered by the invoice are imported for the purpose of manufacturing goods/replenishment of the materials used in the manufacture of goods. It is, therefore, clear that the declaration is to the effect that these goods are replenishment of the materials used in the manufacture of goods which are already exported by the appellants. In this case, since the appellants had already exported the bicycle parts in question their using these materials for manufacture for cycle parts does not arise. They have already fulfilled their obligation by exporting the materials and have....
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.... 1991 (53) E.L.T. 165 has allowed the import of consignments under the generic term "Ethylene". He has pleaded therefore the acrylic plastic scrap even though not mentioned by name in the licence was allowable under licence. 7. Arguing further, the learned Advocate pleaded that the learned lower authority merely on assumptions and presumptions without laying any basis has held that the acrylic plastic bags which are exported are made out of LDPE and no acrylic material as such had been used. He has pleaded that this position was contrary to the facts inasmuch as in respect of one shipping bill samples had been drawn and the Chemical Examiner as could be seen from the Chemical Examiner's report filed in the Paper Book at page 292 (Vol. II) vide report dated 2-6-1995 has clearly stated so in answer to the queries raised in the test memo. After analysing the material of which the plastic garbage bag had been made he has clearly stated that the said bag is composed of Low Density Polyethylene, the upper portion is made of acrylic strip which is used as support for the bag and it is provided with thin polypropylene yarn. He has pleaded that another test report of the Chemical Ex....
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....1.00 to 11.44 gms. per bag. Therefore, I am inclined to discard the samples weighing around 75 gms. The concerned Customs Appraiser, the Customs Inspector and the agent for the Exporter, had examined the plastic garbage bags mentioned above during the course of investigation and had confirmed that the plastic garbage bag weighing around 11.00 gms could be the probable export sample and not the one weighing around 75.0 gms. Further, they have also clarified that the plastic garbage bags seen by them at the time of export did not contain any handles. Shri Rajesh Jain of M/s. Shree Thirumala Udyog, in his statement dated 6-11-1995 had admitted that the average weight of the bags exported was 11.00 gms. and all were of uniform shape and size; that they measured 16' x 24' in size and of 80 micron gauge in thickness. But he claimed that he had put acrylic strip of rectangular shape approx. 4 inches in length and 2 inches in width and thickness ranging from 1.5 to 3 mm. If the weight of this acrylic strip is added to the weight of the plastic garbage bags, then, the weight of the plastic garbage bags will not be certainly 11.00 gms. and it will be much heavier. But the shipping documents ....
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....s pleaded that the learned lower authority merely stated that the weight would have been much more by reason of use of the acrylic strip and has come to the conclusion without taking into consideration the size of the strip and its possible weight. He has pleaded therefore the evidence relied upon by the Commissioner was totally on wrong premises. He has pleaded that he could not discard the result of the Chemical Examiner who has clearly come on record as to the use of the acrylic material and this was in respect of the samples which were drawn from the consignments exported as per the endorsement on the test memo. He has pleaded that the learned lower authority had not taken the appellants into confidence while drawing the samples and had done this exercise on their own. Therefore, in the proper procedure for drawal of sample as prescribed by the department and in respect of which he has filed before us a write-up and the department not having followed this procedure, the results of these test reports could not have been relied upon by the learned lower authority. He has pleaded that in respect of the sample which were sent to the CIPET requirements of Section 144 of the Customs ....
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....He has pleaded that the appellants last export to meet the export obligation were made on 16-5-1994 while the sample had been drawn from the factory when some workers were present in the factory which was drawn on 20-5-1995. He has pleaded that there is detailed procedure prescribed with a view to establish the identity of the sample and also as to in whose custody it should be kept and he referred us to the extract from the book which he himself had authored which is present before us and the procedure which is prescribed for testing the remnant samples. He has pleaded no such prescribed procedure had been followed the test of the samples which were sent to CIPET. In this connection, he was asked to refer to the shipping bill under which the exports had been made to ascertain what happened at the time the exports were made. One of the consignments which was shipped to Singapore under Shipping Bill No. 001676 which is filed at Page 131 (Vol. I) of the Paper Book shows the endorsement by the authorities wherein certain bags have been opened for examination and these were found to contain plastic bags of black colour and the stuffing supervised by the authorities. Again in the case o....
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....ellants could have imported the acrylic scrap subject to the export as stipulated in the licence. He has pleaded that they had not sold any goods prior to 16-5-1994 when the export obligation for export of the goods was completed. In any case, he pleaded, no evidence has been cited regarding the sale of the goods in question. He has pleaded that while a statement had been recorded from the Power-of-Attorney holder regarding the sale of the goods having been made before fulfilling the export obligation no facts in that regards were elicited from him. On going by the actual imports made, on a query from the bench, he clarified that about 44.99 MT of the acrylic scrap had been imported prior to 16-5-1994, the date on which the last consignment, with regard to export obligation, was exported. He further pointed out that so far as the realisation of the sale proceeds are concerned, the same in terms of conditions (vi) should not be read simultaneously with the obligation for full export. His plea is that if the exports are made it takes some time for the sale proceeds to be realised depending on the terms of export i.e. whether the export has been made against the L/C or on credit basis....
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....d what has to be satisfied is that the value of the goods to be exported satisfy the criterion of the value at the time and place of exportation. He has pleaded that the department had made enquiries abroad and had relied upon the so-called invoice which was produced to the Dubai customs at the time of clearance of the goods there. He has pleaded that the copy of the documents furnished clearly shows that there was some manipulation by the importer in U.A.E. and the invoice is not the one which was issued by them even though at the bottom in the photocopy the signature appeared to be tallying with that of the authorised signatory of the appellants. He has pleaded that they had raised a plea before the adjudicating authority to get copies of the invoices under which documents were sent through the Canara Bank to verify the position and it has not been done. He has pleaded that the photocopy of the invoice which was produced is a manipulated document and the importer at the other end might have resorted to the use of a manipulated document to save duty in U.A.E. He has pleaded that the enquiries made by the department through their officers with the importers at the UAE clearly show ....
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....s and it has not been shown that how longer period of limitation could be invoked when there was no suppression on the part of the appellants in respect of any item. He has pleaded that under the DEEC scheme the imports are allowed free of duty subject to meeting the export obligation in future or after the export obligation has been made. The goods as covered by the licence in terms of the DEEC scheme could be imported without payment of duty. He has pleaded that the appellants had done no suppression of facts in regard to any one of the elements under the DEEC scheme and had imported the goods based on the licence produced after coming on record as to the exportation of the goods made by them. He has pleaded in this background the longer period of limitation could not have been invoked for the purpose of demanding the duty. 15. In regard to valuation of the imported goods, he has pleaded that while the scrap had been invoiced at US $ 150 per MT the off cuts had been invoiced at US $ 240 per MT. He has pleaded that the learned lower authority has raised the value of the scrap from US $ 150 to US $ 240 per MT. So far as the revision of the value for the scrap from US $ 150 ....
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....f Vol-I of paper book) the goods which could be imported are 'relevant plastic scrap', related to the export product of garbage plastic bags made out of plastic scrap other than PVC. He has pleaded that the items imported i.e. Acrylic Plastic Scrap had no nexus with the item exported unless the nexus could be shown to be there, the import of the acrylic plastic scrap could not have been allowed. In this connection, he referred us to the Board's Circular No. 1/94 reproduced in 1994 (72) E.L.T. T44 and 45 (Page No. 296 of Vol. II of the paper book). He has pleaded, before the goods could be allowed for importation it is to be established that the goods imported were capable of being used for export product and also that the same had been used so. In this connection, he referred us to the decision of the Tribunal in the case of Zenith Tin Works v. CC, Bombay reported in 1995 (75) E.L.T. 865 (T). He has pleaded in that case, it has been held that the Tin plates which could be imported could be only those which were used in the manufacture of the export product. He, however, fairly concedes that in the present case, in case it was established that the garbage bags exported had a rib of ....
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....ranging from 1.5 to 3 mm. If the weight of this acrylic strip is added to the weight of the plastic garbage bags, then, the weight of the plastic garbage bags will not be certainly 11.00 gms. and it will be much heavier. But the shipping documents and the examination report suggest that there was no discrepancy with regard to the weight and quantity declared in the shipping bills. This has been further corroborated by the statements of the concerned Customs Appraiser dated 6-11-1995. Inspector vide statement dated 6-11-1995 and the Agent vide statement dated 7-11-1995 and the exporter himself. Therefore, the weight of the plastic garbage bags exported must be around 11.00 gms. and this is in conformity with the sample recovered from the factory of the Exporter and tested. The supporting manufacturer, during his statement had admitted that the samples weighing around 11.00 gms. recovered from the factory of the exporter to be representative samples of the plastic garbage bags exported by the exporter. It is argued by the exporter that the plastic garbage bags seized from the factory were manufactured for local market and that reliance need not be placed on the statement of Shri P.V.....
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.... In this connection, he referred us to the judgment of Hon'ble Madras High Court reported in 1994 (70) E.L.T. 559 (Mad.) and also the judgment of Hon'ble Supreme Court reported in 1996 (88) E.L.T. 626 (S.C.) = 1997 (68) ECR 17 (SC). He has pleaded that the appellants had sold the imported materials before 24-5-1995 before the repatriation of the foreign exchange and therefore the benefit of Notification 203/92 could not have been availed of by the appellants. He has pleaded that for demand of duty longer period of limitation has been rightly invoked against the appellants, as they had suppressed the fact regarding the sale of the goods before the repatriation of the foreign exchange relatable to the exports which had been made. He has pleaded that the show cause notice was issued on 11-11-1995 in respect of imports which were made from 9-5-1994 to 22-4-1995. In this connection, he referred us to the findings in para (j) of the learned lower authority's orders which is reproduced below for convenience of records :- "(j) It is contended by the Exporter that he had complied with the conditions of Customs Notification 203/92, dated 19-5-1992 as amended, but I find from th....
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....h the Consulate General of India in....., a clarification was received from the Department of.....and Customs, United Arab Emirates, Dubai vide their Letter Ref. Cus/M/12-2304/95, dated 19-9-1995 through the Consulate General of India in Dubai. On examination of the documents enclosed to the aforesaid letter i.e., the Customs Bills and copies of the invoices submitted by the importer there by M/s. Calipar Trading, Inc., UAE, to the Dubai Customs authorities for the import of Garbage Bags, it is observed that the Garbage bags have been valued at US $ 0.01 per piece for which customs duty have been paid by the importer M/s. Calipar Trading Inc., UAE to the Dubai Customs. The invoice produced is that of M/s. Shree Tirumala Udyog, Bangalore and the same has been signed by Sri. Kiran Jain, one of the partners of the said firm, raised on M/s. Calipar Trading Inc., UAE. For export of Garbage Bags under the said advance licence, as per the value declared, it works out to US $ 20,000 for the entire 20 lakhs garbage bags exported by the exporter under the said advance licence. Further, as per the number of bags declared and the weight of the total consignment, declared in the ship­ping b....
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....efore, the actual export obligation achieved by the Exporter is to the tune of US $ 20,000 instead of the set export obligation of US $ 5,40,000/- by the JDFT, Bangalore under the said advance licence. Further, it also appears that the exporter has grossly over-invoiced the export product i.e., Garbage Plastic Bags in order to complete the export obligation quickly and to avail the duty free import benefits at the time of import of the raw materials to a large extent and value and by this mis-representation of fact and misdeclaration of the particulars, the Exporter has tried to defraud the Government its legitimate import revenue on import of such duty free raw materials to that extent which is otherwise not allowed duty free. The exporter has also not fulfilled the export obligation as per the licence conditions and the Conditions of the Customs Notification No. 203/92, dated 19-5-1992 and they have inflated the export products value in order to achieve the requisite value addition. Therefore, it also appears that the exporter has over-invoiced the export product in order to complete the export obligation and has realised the export proceeds through other means. In view of the po....
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....gainst this, by showing excess value at the time of export, the exporters can show his export obligation fulfilled faster and import materials duty free. Further, as the entire consignment of 18,00,000 pieces of garbage bags have been received at Dubai in 2 x 40 containers, and cleared vide Customs Bills No. 699298 and 699299, dated 4-7-1994, it is possible that only two invoices reflecting the actual value could have been produced. If the invoices produced by the Exporter at the time of Exports are analysed, it is seen that average weight of the plastic garbage bags is around 11.4 gms and valued at Rs. 8.44 per piece. Therefore, value per kg. of the material works out to Rs. 740.35. Considering the total quantity of raw materials imported by the Exporter and the value thereof, the average cost of the raw material works out to Rs. 5.13 kg. and the job work charges per kg. is Rs. 15/-. Even after allowing huge margin of overheads and profit margin, the value declared at Rs. 740.35 per kg. at the time of Export is grossly over-valued and hence the cor­rect value which is to be adopted per piece of plastic garbage bags could be taken as Rs. 0.32 as the per kg. value of the finishe....
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....emporaneous imports had been made could not form the basis for valuation of the consignment of Off cuts. He has therefore pleaded that the learned lower authority's order is sustainable in law. 18. In this regard, the learned Advocate for the appellants in reply stated that so far as the licensing angle is concerned, the appellants could import the acrylic plastic scrap material and since there is evidence by way of the test report, the acrylic material had been used on the plastic bags and in terms of Advance Licence Circular Nos. 8/94, dated 27-4-1994 and ALC No. 3/95, dated 6-3-1995, the appellants were at liberty to import any one of the plastic scrap which had been used in the export product without restriction unless the item was shown to be a sen­sitive item. He has pleaded that acrylic plastic scrap was not notified as one of the sensitive items for import in the Import Policy. 19. The learned SDR at this stage intervened to say that if the appellants were able to establish that they had used the acrylic plastic material in the plastic bags exported the import of the goods in question could be allowed against the DEEC licence. 20. In this connect....
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....h were made up to 16-5-1994 were of the order of 44.89 MT and at worst if the charge of sale is held against the appellants before 16-5-1994 the same would be relevant only in respect of this quantum. As it is, he pleaded, that some goods had been seized and others had been detained by the Customs and this would be part of the components of 44.89 MT. 22. In regard to over-valuation, he has pleaded that the learned lower authority has misdirected himself in fixing the value taking into consideration the value of the goods based on the cost of the same to the appellants. He has pleaded that the law applicable for valuation of the export goods would be the one as set out under Section 14 of the Customs Act. He has pleaded the learned lower authority should have gone by the parameters of this section rather than having resorted to the cost construction method. The methodology for valuation as set out under Section 14 had not been followed and therefore the charge of over-valuation as held against the appellants was not sustainable. He has further pleaded that the learned lower authority has gone by the invoice copy which was obtained from U.A.E. and has not taken note of the in....
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....known as to whether which of the goods were exported. He has pleaded no link between the sample drawn at the factory with the goods exported had been established. He has pleaded the enquiries made abroad has also not established any evidence as to the nature of the goods exported. He pleaded that there is no evidence that the sample which had tested for acrylic had been substituted. He has pleaded the learned lower authority could not have rejected the evidence of the test results without doubting the veracity of the sample which was sent to the Chemical Examiner. 23. Shri Victor Thiagarajan, SDR pleaded so far as the consignment sent to Singapore was concerned it was not taken-up for examination as the consignment was small. 24. We have considered the pleas made by both the sides. The following points arise for determination :- (1) Whether the licence produced is valid for the import of Acrylic Scrap Material. (2) Whether the appellants had exported the goods using the Acrylic Material. (3) Whether the appellants had correctly availed of the benefit of Notification No....
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....import licence covering the full value of the export obligation as set out were made between 8-3-1994 to 16-5-1994, the plea of the appellants is that they had used the acrylic material in the garbage bags exported and therefore in terms of flexibility clause as set out in Para 49 of the Export & Import Policy 1992-97. Under this para, the following has been set out :- "Under a value based Advance Licence, any of the inputs may be imported within the total CIF value indicated for those inputs, except inputs specified as sensitive items." The same provision has also been set out in Para 110 of the Hand Book of Procedures. Under this para, the following inter alia has been set out :- "Once the CIF value of all imports is determined the applicant exporter will have the flexibility to import any one or more items listed in the licence within the average value of the value based advance licence regardless of the quantity indicated against each item in the DEEC book excluding the value of sensitive items." 24.3 There is no dispute so far as the acrylic plastic scrap is concerned, it is not listed in the Import & Export Policy or in the Handbook of Procedures ....
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....d by the authorities that the above exports had been over-valued and that no acrylic material had been used in the export product investigation was taken-up. During the investigation, statements were recorded from persons concerned with the appellants firm, some of their employees and also enquiries were caused to be made abroad through the Governmental agencies i.e. by U.A.E. and they accepted that all consignments were sent. As seen from the correspondence that were exchange between the customs authorities at Bangalore and the Indian Consul in the Embassy in UAE while the importing party at the other end was located and was contacted for information no sample of the goods exported could be obtained by the Consul, as requested by the Customs Authorities at Bangalore. The authorities further had taken some samples of the garbage bags as were available in the appellants factory and the same were also sent for chemical test. The same were sent to the Chemical test as well as to an independent agency viz. CIPET. Statements were also recorded from the Customs Officers to ascertain as to the nature and material of the bags as were exported. During the course of the hearing, we had also ....
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....d stated that the bags were made of LDPE, with threads made of PP as handles through holes in acrylic strips. This reliance of the learned lower authority on the evidence held against the appellants has to be raised against what happened at the time when the exports took place. It is seen from the copies of the shipping bills filed in the paper book before us that the shipments had been supervised by the departmental officers and the goods had been examined before the shipment was allowed and they were also opened and at the same time stuffing of the container was done under the supervision of the officers. The sample was also drawn in the case of Shipping Bill No. 1676 which covered the shipment to Singapore of the garbage plastic bags as part of the export obligation at the same rate as U.A.E. The report as seen from the copy of the shipping bill reads as under :- 'Sir, Verified the marks and numbers on the Gunny bags. Opened and examined the cargo in Bag Nos. 12, 27, 48, 51 and 86 and found to contain "Plastic Bags" coloured black - 2000 pieces in one gunny bag. There wer....
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....le is in the form of black coloured plastic bag with handles. The plastic bag and the thread in handles are made of High density polyethylene. The Plastic strips in handles are made of acrylic. The percentages of material are shown as under : % of HDPE Bag - 78.7% % of HDPE thread - 1% % of Acrylic - 23.3%" It has been further stated that it is not possible to say whether it is made out of scrap by chemical test. It may be ascertained from factory records. 28. We observe that the learned lower authority has chosen to discard the result of the Chemical Examiner test in respect of samples which had been sent by the jurisdictional officers for test to ascertain whether the acrylic material had been used in the export product, by merely observing that the appellants representative had stated that they had used LDPE material as against HDPE, which was found used by the Chemical Examiner on test. We observe that in the case of one test repor....
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....tituents of the bag. However, sample of the bag was put-up for perusal. Q. 16 Was there any order by Superior for drawal of sample in this case? A. 16 Yes. In one of the consignments pertaining to Shipping Bill No. 1676/28-3-1994 being the first shipment there was an oral instruction to draw the sample and same was submitted for further action. Q. 19 Whether it is a group sample. How it was drawn? A. 19 The sample was drawn from the packages opened for examination and the same is a correct representative sample of the shipment under export. Q. 20 Please see the sample which was handed over by ICD customs to AC (P). Whether it is the same you have examined. Whether it contains acrylic handles? A. 20 I have seen the sample now shown to me. However, I cannot confirm whether this sample was handed over to AC (P). The bag which was examined by me bears resemblance to this with regard to colour and shape, but I am not sure of other specifications. The sample shown to me does not contain any handle." Thereafter, he was asked about the sample which had been drawn and sent for Madras Central Excise ....
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.... to confirm the similarity or identity of the garbage bags exported and again he was asked whether the bags had any acrylic handle. The question and Answer No. 29 are reproduced below :- "Q. 29 Please see the garbage bags recovered from factory of STU by Customs Prev. staff on 5-7-1995 which weighs around 11 gms and also see the garbage bags forwarded by ICD customs to AC (P). Please examine and confirm which one was the product similar/identical to garbage bags exported by STU. Please also confirm whether the examined bags had any acrylic handle? A. 29 I have seen both the bags shown to me. Both of them bear resemblance in shape and colour to the bags exported. However as the bags were not weighed at the time of examination, I do not know the weight of the bags. Today after carefully verifying entries in shipping bill with regard to weight of no. of bags, the bag weighing around 11 gms. appear to be the sample of bag which was exported. The examined bag did not have any handle." The above statement has been given voluntarily without any threat or coercion and true and correct. 30. It is seen from the above the Officer who was ag....
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....mples which were drawn in March, 1994 which were Rectangular approx. measuring 24" x 16" without any handle. He has further stated that it was thought that the exporters might have used any one of the plastic materials namely LDPE or PP or Acrylic and he admitted, in the statement against question and answer No. 7 that it was lost sight that they have declared to have used all the above and it has been further accepted by him in, the same answer by stating as under :- "It is admitted that the usage of LDPE, PP and Acrylic scrap were not conclusively verified at the time of export of garbage bags." 31.1 He accepted the drawal of the sample covered by the Shipping Bill No. 1676, dated 28-3-1994 but he has stated that the sample was not drawn as per the procedure of sample drawal and it did not bear the signature of the exporter or his agent, and it could not be correlated to the above shipping bill and it could not be sent for test. Again a question was put as to the drawal of group samples, one weighing 11 grams and the other sample weighing approx. 75 gms. The first sample was stated to have been drawn from the factory premises of the appellants as a representative....
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....f the same but has chosen to discard for the reason that the material shown that the handle is made of HDPE as against the PP stated by the appellant. 33. We observe that cannot be a reason to discard the test results unless it could be shown that the sample tested and sent was not the one which was drawn, and it had been substituted. 34. We observe the information which was elicited from the appraiser Shri J.S.A. Julius and inspecting officer, Shri J. Darshan is after over a year of the export. They have also stated that while the examination was done the examining officer was not sure, being a non-technical person, about the constituents of the bags and all have stated is that the bags of the scrap which was picked up bear resemblance to the bag which was exported. The issue relates to the use of plastic strips on the top of the bags and not about the handle. None of them have stated that the plastic strip was not used on the bag. He has in question No. 10 stated "with regard to weight, size and exact specification, he was not aware of the same". Again to a query (Q. 20) he was asked whether the sample which was sent to AC (P) was the one which he had examined and....
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....ed 30-5-1995, 21-4-1995 and 21-7-1995 endorse that "SAMPLES USED-UP". What the scrap, which the learned lower authority is talking about and the remnant on which he has relied upon to come to conclusion that the weight of the remnant itself would discard the appellant's claim for the use of the acrylic material, is not known. It is observed that the test memo dated 12-5-1995 while carries no shipping bill no. the test memo dated 30-5-1995 filed in the paper book carries Shipping Bill Nos. 2630 to 2634. The samples therefore could be taken to be relatable to these shipping bills as otherwise there was no need to endorse the shipping bills on the test memo. The learned lower authority has not chosen to ignore the particulars as have been mentioned in these test memos and he has not dealt with as to the consignments to which the sample which was sent pertaining to the shipping bill. By the very mention of the shipping bill and in the absence of any evidence to the contrary we have no option but to accept that the samples sent pertain to these shipping bills. 36. The learned lower authority discarded these test results on the ground that HDPE has been found to have been used is....
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.... In such a case, the Court may direct re-examination of the whole issue. But that is not the case here. It has not been shown that the Chemical Examiner or the Chief Chemist were in error in their analysis in any way. The views expressed by the Chief Examiner and Chief Chemist of the Government cannot be lightly brushed aside on the basis of opinion of some private persons obtained by the appellant. Under Rule 56 of the Central Excise Rules, the Central Excise Officer is empowered to take samples for the purpose of testing the samples. He has to communicate the result of such tests to the manufacturer. If the manufacturer is aggrieved by the result of the test, he can request the Assistant Collector that the samples be retested. That procedure has been followed. Therefore, there is no procedural infirmity in the order of the Assistant Collector nor has it been established that the Assistant Collector was wrong in relying on the report of Chemical Examiner and Chief Chemist in preference to the opinion obtained by RCPL from some private individuals." 37. We observe that the appellants have all along been taking the plea that the samples drawn from the factory did no....
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....osed of or utilised in any manner, except for utilisation in discharge of export obligation, before the export obli­gation under the said licence has been discharged in full and export proceeds realised : Provided that Acetic Anhydride in respect of which the benefit of this notification is claimed shall be utilised by the importer in his own factory or in the factory of any other manufacturer indicated in the said certificate even after discharge of export obligation and realisation of export proceeds." 40. His plea is that the appellants had exported the goods in full as per the requirements as set in the licence by 16-5-1994 and the export obligation for the fill export of the goods for entitlement of the appellants to import Plastic Scrap and the condition of the licence can be taken to have been completed by that date. He has pleaded so far as the repatriation of the foreign exchange is concerned, as per the normal practice in the trade the export and the receipt of the foreign exchange are never simultaneous and the sale proceeds of export are received depending upon the terms of payment agreed to between the buyer and the seller and sometimes they could ....
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.... that the condition of the realisation of the sale proceeds can be considered as condition precedent only in the context of the transfer of the licence as in that event the bond executed by the appellants would have been cancelled and unless the sale proceeds had been realised, the transfer of licence could not be allowed. In this connection, he referred us to Para 67 of the Export Import Policy-1992-97 which is reproduced as under :- "67. A Value Based Advance Licence or the materials imported against it may be freely transferable after the export obligation has been fulfilled, export proceeds realised and the Bank Guarantee/LUT redeemed. The export obligation should have been discharged by exporting goods in respect of which benefit of Rule 191A or 191B of the Central Excise Rules, 1944 or input stage credit under Rule 56A or Rule 57A of the Central Excise Rules has not been availed of in respect of any of the inputs used in the manufacture of export products. A Quantity Based Advance Licence (except Advance Intermediate Licence and Special Imprest Licence) or the material imported against it may be freely transferable after the export obligation has been fulfil....
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....export as per the licence for the value envisaged in the advance licence issued for duty free imports according to the evidence produced by the appellants had taken place on 16-5-1994. The part of the goods had been imported before this date and the remaining goods in question were imported after this date. The part of the goods imported before the full export as above are stated to be over 45 MTs while the remaining over 1000 MTs of Acrylic Scrap off cuts etc. were imported after this date. The appellants received the sale proceeds in regard to the same at different items as per the information gathered by the department from the buyers of the appellants as under :- FACSIMILE TRANSMISSION To : CONSULATE GENERAL OF INDIA Date : Sept. 14, 1995 Attn. : MR. C. RAJAN From : Mahesh Chainani RE: YOUR FAX CE/V/1/95/501, DATED 1OTH SEPTEMBER, 1995 With reference to the above, we confirm that M/s. Tirumala Udyog, Bangalore exported 47,520 Acrylic Serving Trays to Calipar Trading Inc. during May, 1994. We confirm that we have cleared the same and are enclosing copies of the relevant clearance documents. The payment for these were do....
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....had also been realised. 47. It is interesting to see from a reading of the wording of condition (vi) is that the rider for sale of the goods "before the export obligation under the said licence has been discharged in full and exports proceeds realised", while it clearly requires that the export obligation under the licence is to be discharged in full; the realisation of the sale proceeds does not carry the word "full" before it. This indicates that full export obligation and realisation of the export proceeds have been treated as two separate events for fulfilment for the purposes of sale of goods imported duty free. The export obligation as set out under the condition of the licence endorsed on it is that the appellants were required to export 14,000 kgs of Garbage Plastic Bags (other than PVC) made out of plastic scrap for an FOR value of Rs. 1,69,02,000/- and earn US $ 5,45,000/-. This export obligation, the appellants, as per their plea, had been fulfilled by 16-5-1994 when the full quantum of the export bags had been exported (the value of the same is the subject matter and the dispute before us) and thereafter they had earned US $ 5,45,000/-. Thus, once the export obl....
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....onverted into money, the Customs Collector has no jurisdiction to confiscate the same and that he can, at the best, only trace the goods in whatsoever hands they may be. We have pointed out that the goods were sold only at the instance of the Court in the interest of both the parties, as they were deteriorating. The order is binding on the parties. The sale proceeds are preserved for the benefit of the party who finally succeeds. In the circumstances, it is not open to the appellants to argue that the money deposited in the Court does not represent the goods." In the same context, the Hon'ble Supreme Court in the compilation judgment in the case of M/s. Lokenath Tolaram Etc. v. B.N. Rangwani & Others reported in 1983 (13) E.L.T. 1520 (S.C.) = ECR C 896 SC = 1974 Cen-Cus April 7 S.C. in Civil Appeal Nos. 1109, 1132 and 1133 of 1971 at Para 23 has held as under :- "The moneys deposited and the bonds executed by the appellants are really the substituted goods for the purpose of adjudication as to whether there can be any confiscation of goods or imposition of penalty. The parties agreed that the Excise Authorities would retain the securities for the purpose of adjudication....
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....which is filed in the paper book at Page 288 and 289 (Volume II) and which is enclosed as an Annexure. On 16-5-1995 the appellants have been given an endorsement for transferability of the licence on the appellants' showing that the full value of the sale proceeds had been received. The transferability of licence is dated 24-5-1995. It has not been shown that the goods in question had been sold before realisation of the sale proceeds as indicated in the above communication or which component relatable to the particular amount repatriated had been sold before the repatriation of the amount. It is seen that the statement which had been recorded from the appellants' authorised agent by the authorities and which has been cited supra is a piece of evidence against the appellants. 51. He has stated at Question No. 31 that they had manufactured the garbage bags out of the imported raw material imported by duty free and duty paid. With regard to endorsement on the shipping bills other than Shipping Bill No. 1676, dated 28-3-1994 and S.B. No. 2631, dated 10-5-1994 wherein they had indicated the utilisation of the imported raw materials as seen from Question and Answer No. 32. On a q....
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....ss this is done, it could not be held that sale took place before the realisation of the foreign exchange and no information in this regard has been brought on record. It was therefore essential for the department to have elicited the information or gathered the information to show that the sale of the materials took place before the sale proceeds pertaining to a particular lot could be realised. It is in this background, the ld. Advocate made the plea that no details regarding the sale of the goods had been brought on record and unless this was done violation of condition (vi) could not be held against the appellants. In the background of the above discussion on facts based on the department's enquiries, the benefit of notification will have to be given to the appellants giving them the benefit of doubt regarding sale of goods as held by the ld. Lower authority and the violation of condition (vi) therefore cannot be held against the appellants, even going by the department's interpretation also. 52. The next question which falls for consideration is whether the quantum as has been imported by the appellants was allowable. As it is the value of the licence covers the goods ....
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....h formed the basis for remittances by the importer at the other end. He has pleaded that the customer at the other end appears to have manipulated the documents for Customs Clearance Authorities in Dubai to subserve his own end there. He has pleaded no reliance could be placed on this as this document was not certified by any public authority or Notary. He has pleaded, given an opportunity, the appellant will be able to prove how this document is not genuine taking into consideration the documents under the cover of which the goods were sent and the invoices as were sent through the bank and which form the basis for the realisation. His plea is that the export value realised may not be always have any close nexus with the cost of production and it all depends on a particular exporter and get for the which are exported. 57. We observe that the mark-up of the price over the cost of production as brought out by the ld. Lower Authority in Para (h) of his findings is certainly disproportionate to the cost of production and the export price certainly is suspect. Suspicion, however, may not be a substitute for proof. Further, the issue will have to be determined with reference to ....
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....ssable value would be the one at which such or like goods are ordinarily sold or offered for sale for delivery at the time of exportation in the course of international trade where the seller and the buyer have no interest in the business of each other. It is true that in this particular case no duty was chargeable on the exported goods and therefore provisions of Section 14 may not be straightaway applicable. But the fact remains that the same value as determined is relevant for foreign exchange remittance and therefore it would be in order to determine the export price taking into consideration the parameters as set out under Section 14. The Valuation Rules as it is in terms of Section 14(1A) would be applicable where the assessable value of the goods to be imported is to be determined. These rules therefore in law cannot be invoked for valuation of the exported goods but certainly these can serve as a guideline for valuation of the exported goods. 61. In view of what we have discussed above, while we hold that the ld. Lower Authority has rightly entertained a suspicion about the value of the Export goods as declared before coming to any conclusions, the ld. lower authori....
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....for ultimate determination of the importability of the quantum of the goods which could be imported depending upon the value of the exported goods we observe that final determination of the redemption fine in respect of imported goods would depend upon the extent of the over-valuation of the exported goods if any which may be ultimately found and the claim of duty free importation and penalty would also likewise be determined accordingly. We, therefore, while holding the goods to be confiscable for reason of misdeclaration of value of the imported goods hold that the appellants will be liable to penalty for this reason and order that the final determination of the redemption fine and penalty be done by the ld. Lower Authority depending on the quantum of the goods which were imported and held to have been cleared without payment of duty due and which are liable for confiscation by reason of not being covered by the licence, taking into consideration the value of the exported goods. 66. The appellants' plea regarding the levy of penalty on the partnership concern and the partners also, we observe that the levy of penalty on both the partners and partnership concern separately....
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....ndings of the ld. Vice President with respect to Points 2 and 3. 72. My reasoning with respect to Point No. 2 is as follows : As far as the second point is concerned, it is to be seen that the appellants had to establish that they have used Acrylic Scrap material in the export product. The charge against them is that they have not done so. The case of the department is that on an intelligence gathered by the authorities that the appellants have exported the bags without using acrylic material and they had over-valued the same. During the course of the investigation the department had recorded the statement of several persons including the employees of the appellants. The authorities had further taken some samples of the Garbage Bags as were available in the appellant's factory and the same were also sent for Chemical Test. It was sent to the Chemical Laboratory as well as to an independent agency viz. CIPET. The ld. lower authority had taken note of the samples which were picked-up during the investigation to come to the conclusion that no acrylic plastic material had been used on the Garbage bags which were exported. 73. In this connection, he has relied on the ....
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....es. Q. 17 How the specifications of the Garbage Bags exported to Caliper Trading, UAE was arrived at and has it been incorporated in the Purchase Order? A. 17 We have indicated to them that the Plastic Garbage bags will be made by LDPE scrapped hard acrylic piece on the top with PP Rope and specification was not incorporated in the Purchase order." 75. Further, to question Nos. 31 and 32, he has answered as follows :- "Q. 31 Have you manufactured Garbage Bags from Raw Materials imported duty free or otherwise? A. 31 We have manufactured Garbage Bags from Imported raw material imported by Duty free and Duty paid. Q. 32 Please see the shipping bills, the relevant invoices and packing list and declaration filed by you in case of export of plastic Garbage Bags under DEEC Scheme. It is seen that only in respect of two shipping bills i.e. 1676, dated 28-3-1994 and 2631, dated 10-5-1994 you have declared utilisation of imported raw material whereas in the case of remaining shipments you have declared utilisation of indigenous raw materials, which is contrary to your Answer ....
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....;Thus, it is seen that what he has stated is that the bags are prepared from LDPE and thereafter Acrylic Handles are fixed on the same. It is in this way, he wanted to say that acrylic material is used in the bag, while it was manufactured. He has also admitted that he used to get the bags manufactured from M/s. Alpha Industries. Shri Giridhar Das of Alpha Industries is also examined in this case. He has clearly stated in his statement dated 17-10-1995 that he manufactured the garbage bags of 16" width and 24" length for the appellants. But he has clearly stated that he received the plastic scraps in crushed form containing LDPE and HDPE only and from that those bags are manufactured. In this statement, he has also stated in Question No. 9 and answered to that question to the effect that he has not used any acrylic material in the manufacture of the bags for the appellants, in view of the fact that he has no infrastructure for the manufacture of the same. He has also answered to Question No. 11 to the effect that the appellants supplied only LDPE and HDPE in crushed form and no acrylic material is used in the manufacture of the plastic bags. Therefore his statement clearly establis....
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....ment of Shri Giridhar Das who manufactured the garbage bags on behalf of the appellants. All these statements clearly show that these bags manufactured by the appellants were manufactured without any acrylic material. 80. It is in this background, the other evidence has to be tested. These statements recorded from the above said persons is under Section 108 of the Customs Act, 1962 and they have evidentiary value. In such circumstances, the ld. Lower Authority was correct in discarding the result of the Chemical Examiner in respect of the samples which had been sent by the jurisdictional officer. These aspects were taken into consideration by the ld. adjudicating authority. In Page 11 of the adjudicating order, he has discussed this aspect which reads as follows :- "(f) Coming to the test reports of Chemical Examiner, Custom House, Madras the reports indicate the presence of Acrylic handles, but the remnant samples received from the Chemical Examiner, Customs House, Madras had been weighed and found to be weighing around 30.71 gms in respect of Test Report of test Memo S. 59/82/95 ICD, dated 22-5-1995 and in the case of Test Report of Test Memo S/9/95 ICD, dat....
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....s in the case of M/s. Shivasankar Tilakraj v. UOI - 1987 (28) E.L.T. 342 (Bom.); M/s. Overseas Cycle Co. v. Collector of Customs - 1992 (58) E.L.T. 248 (T); MA. Bussa Overseas and Properties Pvt. Ltd. v. Union of India - 1991 (53) E.L.T. 165 (Bom.). But I am of the view that these cases are not relevant and applicable to this case in as much as the validity of the licence is not a point of dispute but the utilisation of the raw materials declared to have been used in the exported goods, considering the facts of the case on merits." 81. It is thus seen that these aspects discussed by the ld. adjudicating authority in discarding the Chemical Examiner's Report are further strengthened by the above said statement. Therefore, when the evidence as a whole is viewed, it is clear that the case of the department that no acrylic material is used in the manufacture of the bags is fully proved in this case. 82. Another aspect is the Question No. 29 put to the officer as well as the answer which is discussed in Page 45 of the orders of the Learned Vice President. In the above said statement, the officer had clearly mentioned that the bags exported did not have acrylic handles. T....
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....ted goods were sold by him even before the realisation of the export proceeds. 84. A plea on behalf of the appellants is that the appellants had exported the goods in full and their export obligation for the full export of the goods could be taken to have been completed by that date. It was pleaded that so far as the repatriation of the foreign exchange is concerned, as per the normal practice in the trade, the export and the receipt of the foreign exchange are never simultaneous and the sale proceeds of export are received depending upon the terms of payment agreed to between the buyer and the seller. It was also pointed out that the appellants had executed with the licensing authority in terms of condition (ii) of the above said notification. 85. As per condition (ii), it is stated that the importer at the time of clearance of the imported materials should produce proof of having executed a bond or a legal undertaking before the Licensing Authority concerned, for complying with the conditions of the notification and should make a declaration before the Assistant Collector of Customs binding himself to pay on demand an amount equal to the duty leviable but for the ....
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....he provisions of law, the subject can be taxed. This being the position, a fair reading of Section 5(1)(iii) of the Act would reveal that only the building or the part of the building in occupation of the Ruler which has been declared by the Central Government to be the official residence under the Merged States (Taxation Concessions) Order, 1949, will not be included in the net wealth of the assessee. The contention advanced by the learned counsel for the appellant that once a building has been declared as the official residence and a portion of the said building is under occupation of the assessee then the said building should come under the purview of Section 5(1)(iii) of the Act even if the substantial portion of the same has been rented out by the assessee to the tenant or for any other purpose would make the expression "in the occupation of a Ruler" redundant and those words in the provision would not have their play.' 87. It is therefore seen that it is an established principle that the wordings of the notification are to be understood in their natural, ordinary or popular sense and phrases. Therefore the intention of the Legislature is to be gathered primarily from ....
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....t of the statute should have effect." 90. It is therefore seen that the Tribunal should presume that the Legislature inserted the provision that exempted materials shall not be disposed of until the export obligation under the said licence has been discharged in full and export proceeds are realised. The Legislative intention is that it cannot be disposed of until export proceeds are realised and every part of that clause should be given effect while the same is interpreted. In other words, the same should be interpreted primarily from the language used in the above said clause. No addition or substitution of words is permissible. In other words, if the argument of the ld. Advocate is accepted, it will result in rejection of the words "and realisation of export proceeds" as meaningless and it will make those words redundant. Such a course is not permissible as was held by the Hon'ble Supreme Court in the above cited decision. 91. The statement of Shri R.K. Jain before the authorities rendered under Section 108 of the Customs Act clearly states that he has sold the above said goods even before the realisation of the foreign exchange. I am not able to agree with the f....
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....older is not sufficient to disbelieve them. The Power-of- Attorney holder is a person who looks after the affairs of the appellants and is authorised to answer to the questions. The answer given by them cannot be disbelieved on a presumption that he answered the same without knowing the implications of Notification No. 203/92. The reason is that these are answers given by him to the questions put by the authorities and these are questions of fact. It was not necessary for him to understand the scope of Notification 203/92 to answer these questions which are only questions of fact. Therefore, on that ground, it cannot be held that these answers of the Power- of-Attorney holder cannot be accepted. Even otherwise, it is now seen that these answers are given by Shri Rajesh Kumar Jain who is the General Power-of-Attorney of M/s. STU. Therefore, he is an authorised person who is in the knowledge of the facts in this case. These answers therefore have got evidentiary value which clearly establishes that these goods were sold even before the export obligations are met fully and even before the realisation of the sale proceeds. 93. In this view of the matter, I am of the view that t....
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....spect of imported goods, will have to be determined up to the extent of over-valuation of the exported goods, if any, which may be ultimately found and the claim of duty free importation and penalty also has to be determined in the light of the above said findings. 98. As far as the imposition of penalty on the partners as well as the firm are concerned, I agree with the findings of the ld. Vice President as mentioned in Para 43 of his order. 99. In view of difference of opinion on Point Nos. 2 and 3, the matter requires to be placed before the ld. Third Member for disposal. Sd/- (T.P. Nambiar) Member (J) dated 19-11-1997 DIFFERENCE OF OPINION 100. The following difference of opinion are required to be referred to the ld. Third Member :- (1) Whether in the facts and circumstances of the case, the department has not established that the appellants had exported the goods without using the Acrylic material as held by the learned Vice President or whether the department has established the fact that the appellants had exported the goods without using the Acrylic material as held by the ld. Member (J). ....
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....lue thereof, or for any other purposes of this Act. (2) After the purpose for which a sample was taken is carried out, such sample shall, if practicable, be restored to the owner, but if the owner fails to take delivery of the sample within three months of the date on which the sample was taken, it may be disposed of in such manner as the Commissioner of Customs may direct. (3) No duty shall be chargeable on any sample of goods taken under this section which is consumed or destroyed during the course of any test or examination thereof, if such duty amounts to five rupees or more." 103.2 Further, the Hon'ble Tribunal has held in 1995 (76) E.L.T. 114 (T) that the assessee/importer/exporter is bound by the result of the retest done at the CRCL, New Delhi under the Chief Chemist. Now, it is therefore as per the principles of equity that what is binding on the assessee is also binding on the Department. Therefore, it logically follows that any test result of the Custom House Laboratory, or if this is disputed by either side, then that of the CRCL (Chief Chemist) is normally to be respected and cannot b....
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....s (emphasis mine). The top of the bag is fixed with strips made of acrylic scrap (by merely cutting strips of required size). I find that there is no contradiction between this and his answers to Questions 16 and 17 as in each he has held that acrylic strips were not used to act as handles but only as supports to the upper open end of the bag and that PP rope (presumably thick cordage) was fixed through holes on these strip to act as loop for carrying the bags when filled-up. Therefore, it is clear that there were no "handles" in the design of the bag at all. Instead strips of acrylic were affixed to the brim of the bags by folding over the bag sheets. This provided the necessary rigidity and strength to the bag for the twin purposes of filling it up and subsequent carriage. For lifting/handling the bags, holes were drilled in these strips (as there was no handle) and PP ropes were attached as loops (to act as unrigid handles to carry). This is also confirmed by reports for Test Memos No. S/59/82/95 ICD, dated 22-5-1995 and S/9/95 ICD, dated 30-5-1995. The Chemical Examiner has found "The upper portion is made of acrylic strip which is used as support for the bag....." &nb....
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....st expresses a doubt. Furthermore, as against this, his answer to Q. 8 clearly states that it is possible technically to manufacturing bags out of a mix of acrylic and other plastics. Also, his answers to Q. 3 is very significant. It reads as under : "3. What are the material you have used to manufacture garbage bags supplied to Tirumala Udyog? Ans : I have used HDPE, PP and Plastic Square supplied by the party to manufacture garbage bags without handle." (emphasis mine). This answer clarifies all doubts. Firstly, HDPE granules are used for the main bag cavity walls of sheeting. Secondly, PP is used to extrude the cordage for affixing as loops. And thirdly, what is this "plastic square" he talks of? It is obviously the acrylic off-cut (scrap) out of which the strips are cut as discussed above. What else? And finally, in view of these constituents, he says that the bags have no "handles". In view of this analysis, I am of the view that the deposition of this witness only corroborates that of the others mentioned above. Thus, when everyone says there were no "handles", they only speak the truth. There was no handle in the product design, if by "handle" what we me....
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....t, 1962) cannot be allowed to override the Department's test reports. This is a path fraught with danger - the danger of no "proper officer" verifying the authenticity of the sample, the danger of the exporter or his agent not agreeing to its authenticity as there is no counter-signature from them and also the danger of sitting on judgment over both the technical competence and the integrity of the Customs House Lab without adequate evidence. 104. In view of the foregoing discussions, I find that there is no preponderance of probability in the facts of this case of acrylic not having been contained in the garbage bags exported. 105. The second issue under reference is whether the appellants are entitled for the benefit of Notification No. 203/92 or not? I have considered the views of both my ld. Brothers as also of the ld. Advocate and the ld. SDR and I find that I am in total agreement with the views of my ld. Brother Member (Judicial) Shri T.P. Nambiar. While arriving at this conclusion, I am guided by the principles that :- (a) One Statute cannot (unless so specifically provided) be interpreted using the terms of another statute; ....
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....as also been brought home. 110. So far as Offcuts and Photoframes are concerned, the off cuts as description suggests is considered as scrap. 111. So far as the finding of the ld. Lower authority in regard to Photoframes are concerned same is upheld. The value as fixed by the ld. Lower authority at US $ 450 based on contemporaneous imports of Off cuts is hereby confirmed. Therefore, the misdeclaration of value in regard to these are also confirmed. Hence, the imported goods for this reason have been rightly confiscated under Section 111(m) of the Customs Act. 112. The final determination of the redemption in respect of imported goods would depend upon the extent of the over-valuation of the exported goods, if any, which may be ultimately found and also the penalty imposed on the appellants would also be determined accordingly in the remand proceedings. Therefore, it is held that the final determination of the redemption fine and penalty should be re-determined by the ld. Lower authority depending upon the quantum of goods which were imported and held to have been cleared without payment of duty due and which are liable for confiscation, and taking into co....