Judgment:
1. The brief facts of the case are that on 18-8-1994, the appellants herein placed an order upon M/s. Sumitomo Corporation, Japan for supply of 22,500 metres of Seamless Steel Tubes for manufacture of High Pressure Industrial Gas Cylinders. As per the terms and conditions of the purchase order, 267.317 MTs of Seamless Steel Tubes were imported.
Out of the quantity ordered, he appellants received 7496.915 metres under the relevant Bill of entry. They executed a bond for production of consumption certificate in respect of number of tubes imported as per the requirement of Notification No. 103/81-Cns., dated 1-4-1981.
The end-use certificate for consumption of the steel tubes was submitted by them. The lower authorities held that as per the invoice, the total quantity of steel tubes imported was 4,955 pieces and since the end-use certificate was produced for only 1239, the benefit of the notification was available only for the quantity of tubes covered by the certificate and thit duty was payable on the remaining quantity of 3716 pieces of steel tubes. He ice this appeal.
2. The learned Counsel for the appellants Ms. Madhu Sweta submits that the supplier had mentioned the number of pieces as 4955 by mistake instead of 1239 pieces in the invoice. She submits that the mill certificate of M/s. Sumitomo Corporation clearly brings out thai 1238 pieces of 4 multiple length and 1 piece of 3 multiple length have ben imported and 4955 pieces refer to the number of gas cylinders to the manufactured out of 1239 pieces of steel tubes. She therefore, submits that no duty liability can be fastened upon the appellant.
3. On the other hand, the learned DR Shri Ashok Kumar draws our attention to the invoice which clearly mentions 4955 pieces and he submits that this cannot be taken to represent the number of cylinders to be manufactured by the importers and correctly represents the number of pieces of steel tubes imported under the invoice dated 2-11-1984. He urges us to uphold the impugned order.
4. We have carefully considered the rival submissions and perused the relevant invoice. We agree with the learned DR that the figure of 4955 pieces mentioned in the invoice can only be taken as the number of pieces of steel tubes. There is nothing in the invoice to substantiate the contention of the appellants that 4955 pieces represents the number of gas cylinders that can be manufactured out a smaller or lesser number of steel tubes. The certificate dated January 8,1990 of the foreign supplier cannot be considered at this stage for the reasons that it was obtained not only after the examination and clearance of the goods but also after the order of the Assistant Collector and the Collector (Appeals). We therefore, agree with the lower authorities that the appellants have to pay duty on the balance quantity of 3716 pieces of steel tubes and accordingly uphold the impugned order and reject the appeal.