P.C. Jain, Member (T)

1. In the subject Stay Petition, ld. Advocate, Shri S.R. Dutta prays for waiver of pre-deposit and stay of recovery of Rs. 6,90,289/- demanded as duty and penalty in respect of the goods imported by the applicant. The impugned order has been passed in de novo proceeding on the direction of the Tribunal vide its Order Nos. S-265, A-526/CAL/96, dated 26-7-1996.

1.2. The Tribunal had directed that the applicant herein had produced three quotations. The price quoted was US $ 10 per piece C.I.F. for 5000 pieces. The quotations bore the dates 10-8-1995 or 21-8-1995 and 22-8-1995, nearly two months after the subject import. The Tribunal expressed an opinion that the matter required to be investigated whether there were really no imports nearer the date of import than the imports relied on by the appellant. The other quotations filed by the appellants relating to the price in Indian market were also noticed by the Bench in its aforesaid order and it was directed those could be followed on proper investigation if the international price was not available. The matter was, therefore, remanded with a direction that the Adjudication Commissioner shall make all efforts to trace out as near contemporary imports as possible and if there were no such imports within a few months either side of the date of import, to obtain other materials to show the prices at which identical goods were being offered for sale in the international market.

2. Now in the impugned order, the Commissioner has stated that efforts to find out the approximate values of the identical or similar goods near the contemporary period have not yielded any results. The prices in the international market also could not offer any guide. Accordingly, the Commissioner has fallen back on the prices of identical/similar goods as are available in the local market which might have been brought by the passengers as their baggage or otherwise as he did in the first instance. On the basis of market survey report, the Commissioner has taken the retail prices of the goods at around Rs. 2,000/- to Rs. 2,200/- as against Rs. 3,000/- per piece in the previous proceeding. After a deduction of the various costs as also the profit margin of the dealer, the Commissioner has adopted the prices at US $ 14 per piece and US $ 1 = Rs. 31.55 P and on this basis goods have been found to be under valued. Consequently the differential duty has been demanded. Since the goods has also been released, penalties have also been imposed apart from the normal penalties under Section 112 which total to the aforesaid liabilities.

3. Ld. Advocate, Shri S.R. Dutta for the appellants/applicants has submitted that the Commissioner has not complied with the direction of the Tribunal in its Order dated 26-7-1996 since the prices in the international market near a contemporary period is not available and is not in the hands of the Customs authorities. Ld. Advocate submits that there is no reason to discard the prices declared by the appellants to the Customs authorities. He also makes grievance that the survey report on the basis of which retail price has been found at around of Rs. 2,000/- has not been given to the appellants. As against the aforesaid prices, he submits that the appellant/applicant had already furnished domestic market prices in the course of previous proceeding by way of quotations from the various dealers not only in Calcutta but also from Bombay and Madras which showed that the prices of the goods in question was at around Rs. 1100/- to 1200/-. He submits that the Commissioner has not commented at all as to why he discarded those prices given by the appellants. Ld. Advocate, therefore, submits that the impugned order is not sustainable and should be set aside. One round of hearing before the Tribunal has already been completed and in this second round also, no tangible evidence has come in the hands of Customs authorities to rebut the prices declared by the appellants. He, therefore, prays for not only allowing the stay petition but also allowing the appeal after setting aside the impugned order.

4. Opposing the contention, ld. JDR, Shri S.N. Ghosh for the Revenue submits that it cannot be stated that the Commissioner has not complied with the direction of the Tribunal in its order dated 26-7-1996. Commissioner did make an attempt, as it is apparent from the impugned order, to find out the prices in the course of international trade for the contemporary period but the Commissioners efforts failed. This has been stated so in clear terms in the impugned order. Thereafter, the Commissioner had to necessarily go to Rule 7 to find out the prices of such goods in the domestic market and on the strength of that rule the Commissioner has evaluated the goods. He, therefore, submits that no fault can be found with the approach adopted by the Commissioner. As regards grievances of the ld. Advocate for non-furnishing of the survey report and for not discussing the evidence placed by the appellants in the course of previous proceeding regarding the market prices of the goods in the domestic market, ld. JDR does not have much comments to make except that the evidences of the domestic prices produced by either side was rejected by the Tribunal in its earlier order and, therefore, in that view, the Commissioner might not have considered it necessary to discuss the evidences in that respect, adduced by the appellants. As regards furnishing of the survey report, ld. JDR submits that the personal hearing was duly given to the appellants/applicants and they could make a request for getting a copy of that report at that time.

5. We have carefully considered the pleas advanced from both sides. While we agree with the ld, JDR, Shri S.N. Ghosh that the Tribunal had observed in the earlier order dated 26-7-1996 that the quotation filed by the appellants relating to prices in Indian market could not be followed without a proper investigation. We observe that now the adjudication Commissioner himself has fallen back on the prices of the goods available in the domestic market it becomes incumbent upon him to discuss the evidences adduced in that respect by the appellants. We also find sufficient force in the ld. Advocate for the appellants plea that they have not been furnished the copy of the survey report on the basis of which the Commissioner has arrived at the retail market price at around Rs. 2,000/-. This goes to the very root of the matter and non-disclosure of the evidences to the appellants violated the principle of natural justice. We are of the view that the matter is fit for remand and we order accordingly. The Commissioner should give the copy of the survey report on which he relies so that the appellants have an adequate opportunity to rebut the same. He should also give reasons as to why the appellants evidences of the domestic prices for the goods in question cannot be relied upon.

6. In short, appeal is allowed by remand after we set aside the impugned order.

7. Since appeal has been disposed of, stay petition also gets disposed of.