1. The appellant imported a consignment of diesel filters, declaring their unit price to be US$ 0.35 per piece. The goods were cleared on payment of duty at the declared value. Subsequent enquiries by the department led it to believe that the value of the goods had been grossly underdeclared. The same goods were imported by Parikh & Co from the same supplier, although the value was declared to be US$ 0.34 per piece, and the department's enquiries resulting in an admission by the importer led it to conclude that the correct value should be US$ 1.33 per piece. Neptune Auto Spares Pvt Ltd also imported the same goods in December, 1987 declaring pound sterling 1.93 per piece. Investigation, again an admission of the declaration by the importer of the goods, which he said, were correctly valued was much higher. Allied Enterprise, New Delhi imported the same goods in September 1989 at the same price, declaring the value at pound sterling 0.15 per piece.
Subsequently it produced a supplementary invoice, as a result of which the price was brought down to pound sterling 0.75 per piece amounting to US$ 1.32 per piece. The department also found that these goods were to be used as spares for diesel engines, whereas the importer had claimed them as spares for trawlers which claim has again been accepted.
2. The notice issued to the importer, therefore, proposed enhancement of the declared value of the goods of Rs. 2.48 lakhs to Rs. 9.44 lakhs by enhancing the unit price from US$ 0.35 per piece to US$ 1.32 per piece, demanding the differential duty, proposing confiscation of the goods under Clause (d) of Section 111 of the Act on the ground that the licence was not valid and imposing a penalty. After considering the cause shown, the Commissioner ordered enhancement of the value proposed in the notice, the liability to pay differential duty and imposed penalty of Rs. 10.00 lakhs on the importer. Hence this appeal.
3. The importer is absent and requested adjournment on the ground that the proprietor is unable to travel. The matter has been adjourned at the importer's request six time earlier, starting with the hearing on 21.12.2000. The appeal is of 1996. We therefore decline to adjourn. We have read the memorandum of appeal, and heard the departmental representative.
4. The appeal urges essentially that the transaction value claimed by the importer could not be rejected as none of the four exceptions provided in Rule 4(2) of the Valuation Rules apply. The statement of Deepak Shah was not voluntary. The appellant imported the goods as a "stray import" and therefore cannot be on the same footing as other persons whose import was not cited. Therefore, penalty was not imposable. It is further contended that the imports made by the other three persons did not constitute import of identical goods.
5. We do not find enough material to say that the statement of Deepak Shah was not voluntary. It is accepted that he did not retract it soon after it was made. No reason is advanced as to why this statement could not be considered as voluntary. In the light of the admission made by Deepak Shah, it is clear that the invoice for the goods was fabricated invoice and did not show the price paid for the goods. The price in the invoice therefore does not represent the transaction value. That value is the price, which Deepak Shah says that he paid, and that price is near about the price of US$ 1.38 per piece, that the other persons paid. In these circumstances, therefore, we have to accept that the unit price of US$ 1.05 per piece should form the basis for assessment of the goods.
6. The contention that penalty ought not to be imposed on Deepak Shah, because it was a stray import, is difficult to understand. Whether a stray import or not, it constituted an import knowing made in contravention of law and Deepak Shah was liable to penalty. Having regard to the value of the goods, we think a penalty of Rs. 5.00 lakhs would be appropriate.
7. It will be necessary to redetermine the duty payable. We therefore allow the appeal and sent aside the impugned order. The Commissioner shall determine the actual value of the goods at the rate of US$ 1.05 per piece and determine the duty payable thereon.