Full Judgment
2. The relevant facts that arise for consideration are that the appellant imported eight Second hand Sulzer machines and filed bill of entry declaring them to be of less than ten years old and declared the value as is in the invoice as 'transaction value'. The customs authorities were not satisfied by the declaration and sought the help of Police. Forensic Science Laboratory to determine the correct date of manufacture of the imported sulzer machines. Relying on report of the forensic Science Laboratory the customs authorities came to conclusion that the machines imported were of more than ten years old and the value declared is also not correct. The appellant waived the issuance of show cause notice but attended the personal hearing before the adjudicating authority. The adjudicating authority come to a decision that the imported Sulzer machines were more than ten years old, as such is restricted for import. Value was also enhanced relying upon NIDB data for import of similar machines and demand for duty was confirmed and penalties imposed. Hence this appeal.
3. The learned advocate appearing for the appellant submits that they had provided authentic proof of year of manufacture in the form of certificate from the manufacturer and also from the supplier and from an independent Chartered Engineer. It is his submission that the report of forensic laboratory is not conclusive and does not help the department's case in any way. The learned SDR on the other hand contends that the authorities had sought the help of forensic laboratory as they found that the machines were tampered with as regards the plates which indicate the year of manufacture. It was his submission that the appellant had himself agreed that the supplier might have done some tampering. It was also his submission that the enhancement of the value based on the NIDB data is correct.
4. We considered the submissions made by both sides and perused the records. The Police Forensic Science Laboratory's report relied upon by the authorities reads as under: INSPECTION REPORT OF IMPORTED SULZER LOOMS (MACHINES) LYING AT ICD CONCOR KANAKPURA, JAIPUR. As desired the undersigned along with Shri K.L. Verma, S.S.A. (Physics), Sh. Hari Singh Saini, J.S.A. (Phys) and Sh. Pooran Prakash Yogi, J.S.A. (Photo) visited the Inland container Deport Concor Kanakpura, Jaipur on 14.5.2004 to inspect the Textile looms.
Customs Inspector attended us at ICD Concor. (Photo No. 1) It was stated that eight Sulzer Looms bearing Sr. Nos. 128021, 128082, 128083, 128086 to 128089 and 128094 had been imported at ICD Concor. The Sulzer Looms were found inside the containers. The container LMCU 0350770 contains two looms which have been marked 1 and 2 by us, the container LMCU043 IT 568842 contains four looms, two at the front side and two at the rear side which have been marked 5, 6, 7 and 8 respectively by us. (Photo No. 2, 10 & 15) All the eight looms were found old & used and it was stated by the Customs Officers that all the looms were manufactured in the year 1994.
The machine bearing Sr. No. 129094 (marked by 1) bears the embossed description 22.6.87 on front side portion of the machine and 17.11.87 on right side wall of the machine indicates the year of manufacturer. (Photo No. 3 to 5) The machine bearing Sr. No. 128090 (marked by 2) bears the embossed description 28.03.90 on the right side middle part of the machine indicate the year of manufacture. Tempering was found on right wall of the machine. IN both the machines an Aluminum plate bears the Sr.
No. of the machine was fixed by two rivets on left side wall. The plates have been removed from their location for examination, no extra holes was found on the machines under the plates. (Photo No. 6 to 9) Tempering was found on the left & right side walls of the machines bearing Sr. Nos. 128082, 128083, 128021 and 128086 to 128087.
An Aluminum plate bears the Sr. No. of the machines was fixed by two rivets on left side wall of each machines. The plates were removed from each machine for examination.
No extra holes were found on the machine under the plate bearing Sr.
No. 128083. (Photo No. 11 & 12) Two extra holes were found on the machine under the plate bearing Sr. No. 128082 (marked by 4). (Photo 13 & 14) Two extra holes were found on the machine under the plate bearing Sr. No. 128021 (marked 5). (Photo No. 16 & 17) Two extra holes were found on the each machine under the plate bearing Sr. No. 128086 and 128088 (marked 6 and 8) (Photo No. 23 & 24) Four extra holes were found on the machine under the plate bearing Sr. No. 128087 (marked 7). (Photo No. 20 & 21) No other part of the machines could not be examined as they are inaccessible. I.O. was advised to get the looms out of containers for examination but he showed inability.
It can be seen, that, the said report does not give any categorical year of manufacture of the imported machines. Relying on such an inconclusive report would lead to mis-carriage of justice. On the other hand the manufacturer of the machines in his letter dated 24th April 2004 has clarified the situation. We may read the same: We hereby declare that the weaving looms serial Nos. 128021, 128082, 128083, 128085, 1208087, 128088, 128089, 128094 have been manufactured at the end of year 1994 but consigned to the customer at the beginning of 1995 for financial purposes.
5. A manufacturer of the machine would be the right person to certify the manufacturing year of the machinery. It can be seen, that in this case the manufacturer of the machines has indicated that the machines were manufactured at the end of the year 1994. If that be so, the import is of the permitted category of less than ten year old machinery and the restrictions which is for older machinery is not attracted and the machinery was freely importable. We find that the lower authority has not doubted the correctness of the letter of the manufacturer nor it is challenged before us. In the absence of any serious challenge about the authenticity of the letter of manufacturer, it has to be taken as being correct. As such we are of the view that the machines imported by the appellant did not fall under the restricted category and were freely importable.
6. As regards the valuation of the imported machinery we find that the appellant has produced the Invoices indicating the value of the machinery. The authorities want to discard the said value of the machinery without any reason. The NIDB data relied upon by the authority, to enhance the value would be misplaced, in as much that the machines imported therein could not be considered as contemporaneous imports. The NIDB data gives information about the machines that are not matching to the specifications of the machines imported by the appellant, nor does the NIDB data give the year of manufacture of the imported machinery. It is common knowledge that in the second hand market the year of manufacture makes for difference of value. Further, we also find that the NIDB data produced by the learned SDR shows the country of origin as China while the appellant has imported the machinery from Switzerland, that in itself may be reason for difference in price.
7. In view of the facts and circumstances as mentioned above, we find that the impugned order is liable to be set aside and we do so. Appeal is allowed with consequential relief, if any.
(Operative part of the order pronounced in Open Court at the conclusion of hearing)