Decided on March 18,1986



K. Prakash Anand, Member (T) - (1.)THIS is an application filed against the order of the Collector of Customs, Cochin No. S.30/139/84 Ap. dated 13.2.85.
(2.)The appellants have imported 36 Nos. Evihrude Outboard motors declared to be of 10 H.P. The department held that the imported motors were designed to work over 10 H.P. and as such not covered by the import licence which is valid for import of motors of upto 10 H.P. Accordingly, the Collector of Customs, Cochin confiscated the goods, imposed a redemption fine of Rs. 1 lakh and imposed personal penalty of Rs. 25,000/-
Shri P.N. Menon, the learned consultant for the appellants points out that there has been incorrect appreciation of evidence which is on record; the importer had instructed the suppliers that the motors should be of 10 H.P. It is stated that the Department has not been able to establish the excess horse power of motors in question. It is stated that the Collector of Customs has relied on operating manuals which only show that the basic features are common for machines of both 10 H.P. and 11 H.P. The learned consultant has cited the decision of the Tribunal in the case of 'Jairam and Sons v. Collector of Customs, Cochin, reported in 1983 ECR 1788D and claims that in that caae since the specifications of oil had not been tested by the Department before clearance, it was decided that the benefit of doubt must go to the appellants. Shri Menon has also stated that two motors, out of the consignment imported, are still in the possession Of Customs and they should be asked to have them tested even now for the present rating. He states that the appellants would be prepared to accept the result of the test. Finally, the learned consultant states that the goods imported were not banned items and even if it is held that they are of 11 H.P. rating, the fine and penalty imposed are unwarranted and excessive.

(3.)SHRI K.K. Bhatia, the learned S.D.R. has reiterated the facts and the views as contained in the order appealed against. In particular he points out that the catalogue pertaining to the products imported is for 11 H.P. motors; besides as a result of investigation conducted, the Department was able to seize a copy of message sent by the importers to the suppliers to re-calibrate the motors to 10 H.P. SHRI Bhatia firmly opposes the request that the remaining two motors, presently with the Customs Department, should be subjected to a test as regards horse power rating and points out that the Department's case does not rest on the existing rating of the motors imported. He states that the investigation itself indicated that the motors imported are of 11 H.P. rating. Though they might have been recalibrated to 10 H.P. rating, they can, by a small variation, be upgraded to total 11 H.P. rating for which the motors are designed. The fact that the motors are basically of 11 H.P. rating is established by the Technical Literature relating to the items imported which is a final proof regarding the rating of the goods, not disputed by the appellants themselves.

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