G.A. Brahma Deva, Member (J)

1. We have heard both sides on this condonation application. Delay in filing the appeal was due to the fact that the appellant has filed a petition before the Hon'ble High Court of Calcutta against the impugned order. The Hon'ble High Court rejected the petition, but, however, directed to allow the condonation of delay on filing the condonation application. In view of the sufficient cause, delay was condoned and accordingly, this appeal was taken up for hearing on merits.

2. On facts originally the Collector of Customs, Calcutta, vide his order No. 860(V)-178/86-A/S49(V)-8/86A, dated 9-1-1987, has determined the value at Rs. 4,64,747.44 against Rs. 3,32,207.44 = DM 61940.00 C.I.F. as declared by the appellants in the Bill of Entry for their second hand Bar Peelar/Calow DMR 2 for 25-80 (centreless bar turning machine) for M.V. Bengal Progress Rot No. 295/86, Line No. 44 and the order to be loaded for Rs. 1,32,540/-. In view of this (sic) arrived at the value for loading on the basis of the Board letter F. No. 493/39/80-Cus.VI, dated 16-2-1985 provided guidelines for valuation of old imported machines. This order was challenged by the appellants before the Tribunal and the Tribunal remanded the matter for re-adjudication as per Order No. 726/87-A, dated 4-12-1987 in appeal No. C/1640/87-A and to furnish copy of the Board's order and to give full opportunity to the appellants to defend themselves. In view of this directions, letter outlining the provisions of Central Board of Excise and Customs, No. F.No. 493/39/80-Cus-VI, dated 16-2-1983 referred to in the impugned order was issued and the appellant was heard in person, but however, confirmed the same value by rejecting the contentions and evidence adduced by the appellants. Aggrieved by the impugned order, the appellant has come second round before the Tribunal.

3. Shri K.K. Lahiri, learned advocate, appearing for the appellants submitted that there is no basis for holding that the price of the second hand machine imported by the appellants was higher than what was declared in the invoice. On the other hand, certificate of Chartered Engineer dated 9-5-1986 produced by the appellants in support of the invoice as required in case of importation of second hand machinery for checking up valuation and the valuation shown at DM-57600 selling price of second hand machine FOB which ought to have been accepted by the Department as the imported second hand machine was without spares. Further he stated that neither the Department was correct in adopting the basis as per guidelines of the aforesaid circular nor was it followed correctly in calculating as it adopted the cost of new machinery in 1981 and allowed the depreciation to arrive at the valuation in the year 1986 without giving deduction towards the spare parts as second hand machine was without spare parts and this aspect was clarified by the very Chartered Engineer as per certificate dated 5-5-1988. He submitted that even depreciation should be worked out year-wise taking into account the exchange rate prevailing at the beginning of a particular year. He strongly contended that the Adjudicating Authority ought to have accepted the Chartered Engineer's Certificate in toto, but instead he accepted part and rejected part without assigning any reason for such rejection and adopted some basis to determine the value which is itself baseless.

4. Shri V.K. Sharma, learned S.D.R. while countermanding the arguments advanced by the counsel for the appellants justified the impugned order and stated that the Additional Collector has correctly followed the Board's Circular which was a standing practice in determining the value of the imported second hand machine and further submitted that the clarification issued by the Chartered Engineer regarding the value of the machine with spares and without spares was only an afterthought. He justified the addition of Rs. 5,000/- as re-conditioning charges as the machine was