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High Court Of Calcutta
Ajit K. Sengupta
TRIDENT TELEVISION PRIVATE LIMITED - Appellant
Versus
COLLECTOR OF CUSTOMS - Respondent
Matter 209 Of 1988
Decided On : 12/16/1988
AJIT K. SENGUPTA, J. ( 1 ) IN this application under Article 226 of the Constitution of India, the petitioners have challenged the order passed on 29th September, 1987, (being Annexure 'm' to the petition) by the Collector of Customs and despatched to the petitioners on 15th December, 1987. By the said order, the Collector of Customs purported to confiscate entire consignments imported by the petitioners. The impugned order of the Collector is directed against 540 Colour Picture Tubes imported and 500 sets of Plastic Moulded Parts imported by the first petitioner and 500 sets Printed Circuit Boards for Colour Television imported by the second petitioner.
Fact of the Case:
The petitioners are engaged in manufacture of Colour Television duly registered with the Director of Small Scale Industries. Both the petitioners have set up Small Scale Industries. They have Central Excise Licences. The first petitioner imported from Singapore 540 Colour Picture Tubes per S. S. Theodor Fontane. The said company (the first petitioner) also imported from Singapore 500 Sets of Plastic Moulded parts for 20" Colour Television per s. s. Theodor Fontane. The second petitioner imported from Singapore 500 Sets Printed Circuit Board, Sub-Assembly, Speakers, degaussing Coil and Misc. Accessories for Colour T. V. per S. S. Indian Courier which were transhipped per S. S. Theodor Fontane. On 7th August, 1987, the officers of the Special Investigation Branch from the Office of the Collector of Customs assisted by Officers of the Enforcement Department FERA conducted search and seizure on the strength of the single search warrant having two names and addresses jointly i. e. Trident Electronics, A/2d, Kyd Street, Calcutta and Western Commercial Corporation, 30 Jawaharlal Nehru Road, 16/b, Chowringhee Mansion, Calcutta. The said firm and the said company has no connection with the said firm Western Commercial Corporation. On 7th August, 1987, the said officers conducted a search and seizure and seized from the petitioners' Madan Street Office one file containing relevant papers, 48 pieces of imported integrated circuit No. M 58485 P, 29 pieces of Tuning Block, 2 pieces of National Remote - Control Unit, 9 pieces of Upper drum for VCR and 1 piece of Micro Remote Control. All the said items, according to the petitioners, have been duly imported under valid import licence. Duties in respect thereof have already been assessed by the Customs Authorities and duly paid by the petitioners. On the same day, the respondents also seized 140 pieces of Brother Correctable Film Ribbon, 120 pieces of Brother Multi Strike Film Ribbon and 2 pieces of Brother Colour Graphic writer, B. P. 30 from the business place of the second petitioner at No. 1/2d, Kyd Street, Calcutta 16 and served an order dated 7th August, 1987 upon the Accountant of the said firm asking not to remove, part with or otherwise deal with the said goods. A summons under Section 108 of the Customs Act was issued to the second petitioner and the petitioner was interrogated. On 10th August, 1987, the second petitioner appeared before the Appraiser and he was interrogated by the said Appraisor and Deputy Collector of Customs Sri A. S. R. Nair and a statement was obtained in question and answer form and he was asked to attend on the next day also. The second petitioner again appeared on 11th August, 1987 and further statement was taken from him. He was then served with another summons dated 11-8-1987 and was directed to produce documents for years 1982-87 of M/s. Trident Television Pvt. Ltd. as well as Trident Electronics.
Finding of the Court:
The Collector of Customs by the order of adjudication dated September 29, 1987 enhanced the price and imposed fine to the extent of Rs. 4,14,000/- and penalty of Rs. 5,00,000/-. He also ordered re-assessment of the price of parts and accessories imported by the petitioners at the rate as applicabble to a complete Colour Television 20" on the ground that the said parts and accessories constituted complete television 20" in SKD condition. The goods are imported in SKD condition and are not covered under Import Licence and/or OGL and are consumer goods and hence not covered by the licence. The goods are also undervalued.
Issues: None
Ratio Decidendi: The Collector of Customs has failed to establish any case of under invoicing. The value declared by the petitions has to be taken to be correct, in the absence of any evidence to the contrary. The Customs authorities have failed to produce any evidence to prove under-valuation. The Collector in his adjudcation order noted the contentions of the petitioner regarding valuation which are reproduced as under. The findings of the Collector are therefore perverse and cannot be sustained.
Final Decision: The application is allowed. The order of adjudication dated 29th September 1987 passed by the Collector of Customs is set aside and quashed. The Collector of Customs is directed to pass a fresh order of assessment assessing the subject goods in the list of Bills of Entry and other evidences produced by the petitioner regarding the valuation of the subject goods. The Collector of Customs will in particular take into account the assessable value determined by the Customs Authority in respect of the similar consignments before or after the importation of the subject goods. Upon assessment being made, the duty already paid for release of the 50% of the subject goods shall be adjusted and the balance duty shall be paid by the petitioner. The goods shall be released within four days after the order of adjudication is made by the Collector of Customs. Let a fresh order be passed within three weeks from the date of communication of this order.
( 1 ) IN this application under Article 226 of the Constitution of India, the petitioners have challenged the order passed on 29th September, 1987, (being Annexure 'm' to the petition) by the Collector of Customs and despatched to the petitioners on 15th December, 1987. By the said order, the Collector of Customs purported to confiscate entire consignments imported by the petitioners. The impugned order of the Collector is directed against 540 Colour Picture Tubes imported and 500 sets of Plastic Moulded Parts imported by the first petitioner and 500 sets Printed Circuit Boards for Colour Television imported by the second petitioner.
( 2 ) THE first petitioner is a Company (hereinafter referred to as the "company") incorporated under the Companies Act, 1956, the second petitioner is the sole proprietor of a concern known as Trident Electronics (hereinafter referred to as the said firm ). He is also one of the Directors of the first petitioner M/s. Trident Television Private Limited. Both the petitioners are engaged in manufacture of Colour Television duly registered with the Director of Small Scale Industries. Both the petitioners have set up Small Scale Industries. They have Central Excise Licences.
( 3 ) THE case of the petitioners is that they have been granted Import Licences such as Actual User Licence by the Joint Chief Controller of Imports and Exports and they are eligible to import items of Open General Licence - listed in Appendix 6 of the Import Policy, 1985-88 as Actual Users. The petitioners are also eligible to import as transferee of REP Transferable Import Licence under Export Promotion Scheme for registered exporters and eligible to purchase import materials from Export House under Export House Scheme and as such they are authorised to import and/or acquire the various components and - material parts of T. V. , VCR and Electronic Typewriters and various allied parts in connection thereto.
( 4 ) IN or about July, 1987, the said firm being the second petitioner imported from Singapore 500 Sets Printed Circuit Board, Sub-Assembly, Speakers, degaussing Coil and Misc. Accessories for Colour T. V. per S. S. Indian Courier which were transhipped per S. S. Theodor Fontane.
( 5 ) THE said company being the first petitioner imported from Singapore 540 Colour Picture Tubes per S. S. Theodor Fontane.
( 6 ) BOTH the aforesaid consignments arrived at Calcutta Port on or about July 20, 1987. The first petitioner and the second petitioner submitted respective Import Invoices through their Customs authorised Clearing Agents, M/s. Dutta Agency, Calcutta. They submitted along with the Import Invoice of the foreign supplier, M/s. Viraj Corporation, Singapore, Packing List, Sales Contract and all required papers and documents for clearance of the aforesaid consignments from Customs for warehousing in non-duty paid Bonded Warehouse in terms of Section 59 of the Customs Act, 1962. The Appraising Officer and the Appraising Assistant Collector of Customs, after conducting necessary scrutiny of all the documents and import licences submitted by the petitioners and after necessary verification of the same and after going through the import licences eligibility of the said petitioners for importation of item of open general licence cleared the subject consignment as authorised import under Open General Licence Appendix 6, Import Policy 1985-88 and permitted the same to be stored in nonduty paid warehouse under Section 59 of the Customs Act, 1962. The said two consignments, one of the second petitioner and the other of the first petitioner were thus removed and stored to non-duty paid warehouse under Section 59 of the Customs Act.
( 7 ) IN the middle of July, 1987 the said company (the first petitioner) also imported from Singapore 500 Sets of Plastic Moulded parts for 20" Colour Television per s. s. Theodor Fontane. The said consignment arrived at the Calcutta Port on July 20,1987. The first petitioner though
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