G.A. Brahma Deva, Member(J)

1. This appeal arises out of and is directed against the Order-in-Original No. 830/10/90 Ap. Cus. dated 1-2-1990 passed by the Collector of Customs, Cochin.

2. The appellants M/s. Honesty Traders imported 17 packages containing 2,40,000 pcs. (20,000 dozen) YKK Zip fasteners 8 inches made in Taiwan from Singapore. A bill of entry bearing No. 167 of 11-12-1989 was filed in the appraising Department (Imports), Customs House, Cochin. The Unit price of the goods as per invoice from the suppliers was S $ 0.73 per dozen, i.e. Rs. 6.25 per dozen or Rs. 52/- for 100 pcs. On examination by the Department the goods were found to be tallied with the description as per Bill of Entry but the value shown thereon at Rs. 52/- for 100 pcs. was very low and goods were undervalued. According to Department there has been contemporaneous import of identical goods from Singapore at the price of J Y 1159 per 100 (Rs. 136.75) and at that rate the total of price of the goods worked out to Rs. 3,28,212/- against Rs. 1,25,027/- declared and release advice produced for the clearance did not cover the full value of the goods. Accordingly, a Show Cause notice dated 19-1-1990 was issued to the importers calling upon them to explain as to why the goods should not be confiscated and penal action taken against them for the charges (i) imported goods were not covered by the valid licence and the importation of goods was in contravention of ITC Order No. 17/55 dated 17-12-1955, constituting an offence rendering the goods liable to confiscation Under Section 111(d) of the Customs Act read with Section 32 of Import and Export Control Act, 1947 and (ii) for undervaluing the goods which constitutes an offence rendering them liable for confiscation under Section 111(m) of the Customs Act.

The show cause notice was duly answered by the appellants questioning the validity of issue of show cause notice dated 19-1-1990 as the goods have already been assessed by enhancing the price S $ 0.73 to S $ 0.80 per dozen by the Assistant Collector, the same order cannot be reviewed, much less it could be reopened. On merits, they replied that the price quoted was the contracted price between the importer and the supplier. They also produced some invoices from Bombay Custom House at the rate of S $ 70 and 66 as unit price for identical goods to show that enhanced price of the goods at S $ 0.80 in the B/E in question compared well with the price of identical goods noticed at Bombay. Further it was contended by them that contemporaneous invoice relied upon by the Department did not show the country of origin of the goods and quantity shown therein is only 7400 pcs. as against 2,40,000 in the consignment under dispute. It was also explained by them that products of Taiwan are cheaper than the Japanese.

3. The Collector of Customs, Cochin who adjudicated the proceedings negatived all the contentions raised by the appellants and confirmed the charges holding that the goods have been undervalued based on the invoice dated 24-5-1989 of YKK Zippers(S) Pvt. Ltd., Singapore for Zip fasteners at J Y 1159 for 100 pcs. noticed in Bombay. Accordingly, the Japanese Y 1159 for 100 pcs. as unit price was fixed as assessable value of the goods in question and ordered for confiscation of the goods under Section 111(m) of the Customs Act read with Section 3(2) of the Import and Export (Control) Act, 1947, but, however, option was given to redeem the goods on payment of fine of Rs. 75,000/- and personal penalty of Rs. 10,000 was imposed. Aggrieved by the said order the appellants have come before us by way of this appeal.

4. We have heard Shri Sukumar Patt Joshi, learned Advocate, for the appellants and Shri L.P. Asthana, learned S.D.R. for the respondent.

5. Shri Sukumar Patt Joshi, learned counsel, appearing for the appellants submitted that impugned order suffers for want of jurisdiction as the order was passed based on the Show Cause notice issued by the Assistant Collecto