D.N. Lal, Member (T)

1. The brief facts of the case as contained in the Memorandum of Appeal and as stated during the course of the hearing by Shri Sogani are briefly as follows :

On 15-1-83, the Appellants entered into a contract with M/s. Induscandia Erikson Co. AB (hereafter to be called the foreign supplier) for one Roland RZK.-111 Offset Press with standard equipment. The year of manufacture of the said goods was 1975. The c.i.f. value for the Press along with standard equipment was contracted at Rs. 3,19,200/-. In pursuance of this contract, the appellants opened a letter of credit through Syndicate New Delhi on 25-2-83. At the time of opening of the letter of credit, the goods in question were covered by the O.G.L. under the Import Policy for the year 1982-83. In terms of the letter of credit, date of shipment was stipulated as 15-6-83 and date of negotiation of document as 30-6-83. Later on, vide letter dt. 5-5-83, the foreign supplier informed the appellants that due to difficulties, the goods should be ready for shipment by 30-7-83. Accordingly, they suggested to the appellants to extend the letter of credit to a suitable date. In the alternative, offer was made to supply some other machines in case the earlier schedule of shipment was to be maintained. On 12-5-83, the appellants informed the foreign supplier to stick to the originally contracted machines and also to ensure that the same were shipped not later than July 1983. Supplier's telegram dated 19-5-83 intimated the appellants that the goods would be ready for shipment before August 1983 and requested the extension of validity of the letter of credit. On 31-5-83, the appellants got the letter of credit amended providing for extension of shipment date to 30-7-83 and negotiations date up to 14-8-83. The goods were finally shipped on 26-7-83. The Bill of Entry for the goods was noted in the Custom House on 18-11-83. On 22-12-83, the Custom House issued a show-cause notice to the appellants alleging—

(1) the goods in question were not covered by the O.G.L. because the letter of credit opened by the appellants on 25-2-83 was subsequently amended on 31-5-83. The machinery could not be treated, therefore, to fall under OGL in terms of Import Policy for 1982-83.

(2) the appellants had under-invoiced the goods in question by declaring the value thereof as Rs. 3,19,841/- c.i.f.

2. As a similar printing machine imported by another party had been noticed by the Custom House which was invoiced at Rs. 5,06,869/- c.i.f. the appellants were alleged to have under-invoiced the goods to the extent of Rs. 1,87,028/-.

3. The Appellants were charged with an offence attracting provisions of Section 111(d) of the Customs Act, 1962 read with Section 3 of the Imports Exports (Control) Act, 1947.

4. After hearing the party, the case was adjudicated by Collector of Customs, Bombay. The said Collector, vide his order dated 16-1-84 held that the correct assessable value of the appellant's goods should be Rs. 5,06,869/-and not the one declared by them in the bill of entry. He also held that the goods in question were not covered by the O.G.L. and ordered their confiscation under Section 111(d) of the Customs Act, 1962, read with relevant provisions of the I.T.C. Act. The learned Collector ordered confiscation of the goods for violation of the aforesaid section and gave the appellants option to clear the goods on a fine of Rs. 1,00,000/- only.

It is against this order of Collector of Customs, Bombay that the present appeal has been filed.

5. Shri Sogani submitted that the facts of the present appeal were more or less similar to the ones covered by appeal No. CD(SB) 345/84-A disposed of vide order No. 573/1984-A dated 7-8-84 (1985 ECR 646-CEGAT in the case of Rakesh Press, New Delhi v. Collector of Customs, Bombay).

6. Shri Sogani first took up the question of the eligibility of the goods in question under the OGL. He submitted that the only ground on which the benefit of the OGL had been deni