Oswal Wollen Mills Ltd., Ludhiana Vs. Asstt. Collector of Customs, Bombay and Others - Court Judgment

G.C. Jain, J.

1. Messrs Oswal Wollen Mills Ltf., Ludhiana, the petitioner, applied to the Textile Commissioner, Bombay, for grant of essentiality certificate for the import from Italy of one Tentering Machine used for the manufacture of woollen. Along with the application the petitioner submitted a proforma invoice of the Italian manufacturers, the Asienda Termotecnica Italiana (ATI) Milan, Italy, showing the value of the machine at U.S. $ 34000. On the basis of the said application the petitioners were ultimately granted an import license dated January 19, 1967 for p$ 3,30,500/- (on devaluation basis) by the Joint Controller of Imports and Exports, Bombay. The petitioners, it is alleged, while negotiating with the representatives of the manufacturers requested for the reduction in the price by 20 per cent. The manufacturer's representative agreed to the reduction and sent the manufacturer's acceptance as per their letter dated March 17, 1966 (Annexure B) reducing the price from U.S. $ 34,000 to U.S. $ 28,000. The contract for the purchase of the machine from U.S.$ 28000 c.i.f. was approved by the Government of India, Ministry of finance (Department of Economic Affairs) vide their letter dated October 28, 1966 (Annexure C). The petitioners retained the documents of the suppliers and passed them to their clearing agents for clearance of the consignment after payment of the necessary duty. While processing the documennts, the Assistant Collector of Customs Bombay found that the suppliers had offered the machine for sale at U.S. $ 34,000 but the value of the machine in the invoice had been shown as U.S. $ 28000. After examining thee correspondence the Assistant Collector of Customs vide order dated November 14, 1967 (Annexure A) observed that the petitioners had been allowed a special discount of 20 percent as a very special discount was not admissible as per customs valuation rules. He consequently determined the value at U.S. $ 34,000 under rule 8 of the Customs Valuation Rules, 1963 and section 14(1) of the Customs Act, 1962. The appeal filed by the petitioner was dismissed by the Appellate Collector of Customs on January 22, 1961 (Annexure D). The revision was dismissed by the Government of India on August 23, 1970 (Annexure E).

2. Feelings aggrieved the petitioners filed the present petition under Article 226 of the constitution of India for quashing the said assessment orders and directing the respondents to refund the sum which was levied in excess under the impugned orders. It was averred that the quoted price of U.S. $ 34,000 was an exploratory quotation and was not a firm offered price within the meaning of Section 14(1) of the Customs Act, A special trade discount had nothing to do with the tariff value to be determined under Sections 14 of the Act and the tariff value was to be determined on the actual price at which the machine was sold. The respondents had not exercised the power in accordance with law but it had been exercised capriciously, arbitrarily, without reference to of nexus with the material and evidence and contrary to the rules governing the exercise of best judgment. The impugned orders were vitiated by total absence of evidence. There was no findings that the sale was not a genuine transaction or that the seller and buyer had any interest in each other's business or that the petitioner had paid more than U.S. $ 28,000 . The Government of India failed to consider the letter dated December 22, 1969 (Annexure G) received from the Italian sellers which had been filed before them.

3. The respondents in the reply affidavit averred that the findings of the authorities were the findings of fact and were not open to be questioned in these proceedings. There was no error apparent on the face of the record and the petitioners were not entitled to invoke the juridiction of this Court under article 226 of the Constittution. The petitioners were guilty of unexplained dinordinate delay. On merits it was averred that no material was produced to show that the price was scaled down to U.S.$ 28,000 due to the negotiiations. On the other hand,it was reduced at the personal meeting with the principal's representatives. Such discount was not admissible under sectionn 14(1) of the Customs Act, No fresh evidence could be produced at the revisional stage. Letter dated December 12., 1969 came into exisatance after the orders had been passed by the Assistant Collector of Customs and upheld in appeal. The value of the machine has been determined in accordance with the provisions contained in Section 14(1) and rule 8 and the orders were legal.

4. Section 14(1)(a) of the Customs Act, 1962 and rule 8 of the customs Valuation Rules, 1963 read as under:-

'Section 14(1) . For the purposes of the Indian Tariff Act, 1934, or any other law for the time being in force whereunder a duty of customs is chargeable on any goods by reference to their value, the value of such goods shall be deemed to be-

(a) the price at which such or like goods are ordinary sold, or offered for sale, for delivery at the time and place of importation or exportation, as the case may be, in the course of international trade, where the seller and the buyer have no interest in the business of each other and the price is the sole consideration for the sale or offer for sale.

Provided that in the case of imported goods, such price shall be calculated with reference to the rate of exchange as in force on the relevant date referred to in sub- section(1) of section 15'.

Rule 8. If the value of the imported goods cannot be properly determined under the foregoing provisions, the proper officer shall after taking into account all relevant material which he has gathered, determine the value to the best of his judgment.'

5. Miss Lily Thomas, learned counsel appearing for the petitioners contended that the expression ' the price at which such or like goods, are ordinary sold or offered for sale' used in clause (a) of Section 14(1) mean the price at which the goods were actually sold. The sale, however, should be in the course of international trade where the seller and the buyer have no interest in the business of each other and the price is the sole consideration for this sale or offer for sale. It was argued that none of the authorities had recorded any finding that the seller and the buyer had any interest in the business of each other or that the price was not the sole consideration for the sale or offer for sale and in such circumstances the price at which the machine was sold by the Italian supplier and purchased by the petitioners was the price on which the value of the machine could be fixed under Section 14(1)(a). She also contended that the rule of best judgment was not attracted and in any case this was the only machine sold in India and there was no evidence for fixing any other value under rule 8.

6. An examination of clause (a) of Section 14(1) revea;s that the value has to be assessed on the price at which such or like goods are ordinarily sold or offered for sale. The word 'ordinarily' according to the Shorter Oxford English Dictionary in most cases means: 'usually, commonly '. According to Webster`s Third Neew International Dictionary, it means 'in the ordinary course of events: usually, to the usual extent: moderately: in a common place.... without distinction'. According to the findings recorded by the authorities the reduction of 20 per cent was granted as a special case. The supplier in their letter dated November 11,1967 has stated that this was the only order received by them from India and executed by them at that price- U.S.$28,000, and that in the case of new orders their ruling price was to apply . In other words they have recorded a finding that the usual price of this machine was U.S,$ 34,000 and that the price of U.S.$ 28,000charged from the petitioners was by way of a special case or in other words a special price for petitioner`s only. On such findings the value of the machine, i.e. U.S.$ 34,000 in my view could be assessed.

7. The findings arrived at by the authorities were fidigs of fact. The view taken was a possible view. This court in exercise of its extraordinary jurisdiction under Article 226 is not competent to interfere. In State of Andra Pradesh and others v. Chitra Venkata Rao : (1976)ILLJ21SC , it was held as under:-

'The jurisdiction to issue a writ of certiorar i under Article 226 is a supervisory jurisdiction. The court exercises it not as oan Appellate Court. The findings of fact reached by an inferior court or Tribunal as a result of the appreciation of evidence are not re-opened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regardd to a findings of fact recorded by a Tribunal, a writ can be issued if it is shown that in recording the said finding, the Tribunal had error one uslylyadmitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidencee, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the tribunal cannot be challenged on the ground that the revelant and material evidence adduced before the Tribunal is insufficient or inadeqate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inferencee of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. (See Syed Yakoob v. K.S.Radhakrishnan, : [1964]5SCR64 ).

8. The petition, thereforee, has no substance and is consequently dismissed. The partiesare, however, left to bear their own costs.