Commissioner of Customs, Acc Vs. Prasan Enterprises - Court Judgment

Excerpt:
1. the order of the commissioner (appeals) disposes of two appeals before him. the matter was earlier adjourned to enable the department to file, if it chooses to, file another appeal in addition to the one already file against this order. no such appeal has been filed.accordingly, this appeal is considered as an appeal against the order of the commissioner (appeals) disposing of the order-in-original no.s/10-52/93-aciu of the additional commissioner.2. in the order impugned in the appeal the commissioner (appeals) has confirmed the finding of the additional collector that the prices of the integrated circuits imported by prasan enterprises, the appellant before the commissioner (appeals) and the respondent before us, were undervalued and should be determined with reference to the price list which the department relied upon. he has, however, held that a discount of 60% should be deducted from the prices in the list. the department challenges this finding.3. we have heard the departmental representative. the respondent is absent and unrepresented despite notice.4. the commissioner has relied upon a decision of the tribunal in nikon systems (p) ltd. vs. collector 1989 (42) elt 598, which has in turn relied upon an unreported decision of the tribunal in takara electronics vs. collector of customs holding that 60% discount should be given on mail order prices. the contention before us is that the price list that the dependent relies upon is not a mail order catalogue, and therefore question of applying the ratio of the decision in takara electronics vs. collector will not arise. the departmental representative contends that the price list itself does not mention any schedule of discount.5. the respondent has not challenged before us the applicability of the prices in the price list in question. that being so, any discount that would be applicable to the prices in that price list which would be available to the importer. the price list does not contain details of any discount available to a buyer. it is also, clearly, not a mail order price list. the commissioner (appeals) does not indicate that why he equated this price list with a mail order price list for the purposes of discount. no discount therefore was permissible.6. the commissioner (appeals) has also reduced the redemption fine and penalty, evidently as a consequence of reduction in the value that he determined of the goods ordered confiscated. that reduction also will therefore have to be set aside.7. the appeal is therefore allowed, the commissioner (appeals) order in question set aside and the additional collector's under restored.

Judgment:
1. The order of the Commissioner (Appeals) disposes of two appeals before him. The matter was earlier adjourned to enable the department to file, if it chooses to, file another appeal in addition to the one already file against this order. No such appeal has been filed.

Accordingly, this appeal is considered as an appeal against the order of the Commissioner (Appeals) disposing of the order-in-original No.S/10-52/93-ACIU of the Additional Commissioner.

2. In the order impugned in the appeal the Commissioner (Appeals) has confirmed the finding of the Additional Collector that the prices of the integrated circuits imported by Prasan Enterprises, the appellant before the Commissioner (Appeals) and the respondent before us, were undervalued and should be determined with reference to the price list which the department relied upon. He has, however, held that a discount of 60% should be deducted from the prices in the list. The department challenges this finding.

3. We have heard the departmental representative. The respondent is absent and unrepresented despite notice.

4. The Commissioner has relied upon a decision of the Tribunal in Nikon Systems (P) Ltd. Vs. Collector 1989 (42) ELT 598, which has in turn relied upon an unreported decision of the Tribunal in Takara Electronics Vs. Collector of Customs holding that 60% discount should be given on mail order prices. The contention before us is that the price list that the dependent relies upon is not a mail order catalogue, and therefore question of applying the ratio of the decision in Takara Electronics Vs. Collector will not arise. The departmental representative contends that the price list itself does not mention any schedule of discount.

5. The respondent has not challenged before us the applicability of the prices in the price list in question. That being so, any discount that would be applicable to the prices in that price list which would be available to the importer. The price list does not contain details of any discount available to a buyer. It is also, clearly, not a mail order price list. The Commissioner (Appeals) does not indicate that why he equated this price list with a mail order price list for the purposes of discount. No discount therefore was permissible.

6. The Commissioner (Appeals) has also reduced the redemption fine and penalty, evidently as a consequence of reduction in the value that he determined of the goods ordered confiscated. That reduction also will therefore have to be set aside.

7. The appeal is therefore allowed, the Commissioner (Appeals) order in question set aside and the Additional Collector's under restored.