Decided on March 19,1986



K. Prakash Anand, Member - (1.)THIS is an appeal against the order of the Collector of Customs, Cochin No. Section 30/48/85/-Ap. dated 15th May, 1985.
(2.)The goods imported are 39 Nos. Evinrude Outboard motors declared to be of 10 H.P. The Department's case is that the motors were actually of 11 H.P. and therefore, not covered by the licence which was for 10 H.P. motors and therefore, the Collector confiscated the goods, imposed a redemption fine of Rs. 1,20,000/- and a personal penalty of Rs. 25,000/-.
Shri P.N. Menon, the learned consultant for the appellants states that the motors imported were of 10 H.P. only. They had offered that the motors may be subjected to test to verify the horse power rating. They also produced two certificates, one from Chartered Marine Surveyor according to which the test of one of the outboard motors from an earlier consignment imported by M/s. Madras Pack Marine showed that the motor was of less than 10 H.P. rating. The second certificate from P.S.G. Engineering College, Coimbatore stated that the horse power of the motor was less than 10 H.P. It is stated that the Department failed to heed the test report of technical bodies. They also failed to conduct any test of the motors themselves and preferred to come to a conclusion that the actual rating of the motors was 11 H.P. on other factors which could hardly be considered to be conclusive, one way or the other.

(3.)SHRI K.K. Bhatia, the learned S.D.R. however, points out that the supplier of the impugned goods has earlier supplied the model/type of engines to other importers and at that time all the documents showed that the horse power of the motor was 11 H.P. In the case of the present goods although the horse power of the motor declared as 10 H.P., the value of the engines is the same as that of 11 H.P. engines supplied earlier. It was further stated that with each outboard motor the suppliers have also given an operator's manual. This manual apparently is for 11 Kero Engines without details of horse power of the engines. The Department however, found that the words "U KERO" were printed on a sticker which was pasted on the outside cover page of the operator's manual at a place where the original printed words were "11 H.P. KERO". According to the Department this shows that the goods were of 11 H.P. It is stated that in an earlier import arranged for another firm by M/s. Cleetus Vincent Co. Quilon, the 11 KERO engines imported were actually of 11 H.P. It is stated that in view of what seemed to be the tampering of the operator's manual, the office premises of the importer in this case as well as M/s. Cleetus Vincent Co., another importer, said to be a sister concern, were searched. This search revealed a telex message sent to the suppliers by M/s. Cleetus Vincent Co., indicating that instructions were given to recalibrate the 11 H.P. motors to be of 10 H.P. It is stated that actually what was done was that the excess horse power was brought down by making certain minor fuel adjustments for the purposes of 10 H.P. performance.

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