P.C. Jain, Member (T)

1. Brief facts of the case are as follows:-

1.1 The appellants imported on or about February 1990 one consignment of 21 pieces of Lap Top Computer Model at a unit price of U.S.$ 1630 FOB Hong Kong from M/s. Bondwell International Ltd. On 20-2-1990, a bill of entry was filed together with invoice dated 13-2-1990.

1.2 On 30-3-1990, the appellant approached the Andhra Bank with a request to open an irrevocable letter of credit for U.S.$ 33,750 in favour of the aforesaid suppliers - M/s. Bondwell International Ltd. for 25 pieces of the Lap Top Computer Model B 310 at a unit price of U.S. $ 1350. The debit advice dated 30-3-1990 for Rs. 63,000 being 10% margin money for the letter of credit is also of the same date i.e. 30-3-1990. The said Bank has given a certificate that the credit was despatched on 2-4-1990, though it was opened on 30-3-1990 (Annexure 'D' to the appeal). Some amendments were carried out in the letter of credit by amending the name of the beneficiary and by incorporating a clause for interest, extension of expiry date, invoice number etc. On 19-7-1990, the appellant herein filed a bill of entry for clearance of 25 pieces of Lap Top Computer.

1.3 The department raised some disputes about valuation of the goods and the import licence. The appellant herein waived the show cause notice but availed the opportunity of personal hearing.

1.4 The matter was adjudicated by the Collector of Customs, Air Cargo Complex, Sahar. On the question of valuation he has found that the identical goods had been imported more or less at the same time by the party at a higher price i.e. at U.S. $ 1630 FOB Hong Kong. The explanation of the appellant that the price of the goods is lower because of fluctuation in the international market, was not accepted by the said authority on account of lack of evidence. He has, therefore, ordered that the valuation be done on the same price at which the appellant imported the goods earlier and he accordingly fixed the CIF value of the consignment at Rs. 7,29,283/-. The charge of mis-declaration of value was, therefore, upheld against the appellant and the goods were held liable to confiscation U/S 111(m) of the Customs Act, 1962 and confiscation was accordingly made.

1.5 On the question of Import Trade Control Policy, he has held that the goods do not come in the category of non-OGL capital goods, therefore, application of the flexibility clause in para 177 of the AM 1988-91 Policy was ruled out. On an another plea of ITC aspect that the letter of credit was opened on 30th March, 1990 and therefore, the provisions of para 204 (6) of ITC Policy AM 1990-93 would be applicable, the Collector while accepting that the letter of credit was opened by the appellant on 30th March 1990, has not extended the benefit of the old Policy on the ground that as per the said letter of credit the shipment of the goods ought to have been made by 30th May 1990. Since the shipment in this case was made in July 1990 and in view of the provisions in para 204 (6) of the AM 1990-93 Policy, extension of period of shipment in the letter of credit would amount to fresh commitment made after 30th March 1990; the Collector did not extend to the appellant the benefit of the old Policy. He, therefore, held that the ITC aspect in respect of the goods under consideration would have to be examined in the light of the current Policy i.e. AM 1990-93 since according to him, the goods fall under S. No. 175 of Appendix 2B and require a valid licence for their clearance and there being no such licence the goods were held liable to confiscation under Section lll(d) and were accordingly confiscated. Nevertheless, he has ordered that the REP licence produced would have to be debited for the value of the goods. In view of the aforesaid findings, the Collector has given an option of the appellant to redeem the goods on payment of a fine of Rs. 7,25,000/- in lieu of confiscation and imposed a penalty of Rs. 75,000/-on the appell