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Smart Summary

Factual and Procedural Background

This opinion arises from two appeals against an order dated 28-11-1988 by the Additional Collector of Customs, Calcutta. The Additional Collector had ordered confiscation of a consignment described as "Mechanism for battery operated toys" imported by M/s. Kakar Toys Industries under Section 111(d) and 111(m) of the Customs Act, 1962, levying a fine of Rs. 1,00,000 in lieu of confiscation and imposing a penalty of Rs. 20,000 under Section 112. By the same order, the Additional Collector ordered absolute confiscation of plastic moulded components imported by M/s. Mahendra Mechanical Industries and imposed a penalty of Rs. 10,000 on them.

Chronology and relevant facts: custom house agents filed a Bill of Entry for Kakar Toys on 11-5-1987 for parts imported from M/s. Alltoys Co. Ltd., Hong Kong. Later, on 24-8-1987, the same agents filed Bills of Entry for Mahendra Mechanical for plastic moulded component parts; the supplier was the same Hong Kong firm. On examination, the Custom House found that most parts required to make complete toys appeared across the two consignments. The Custom House suspected that the Mahendra consignment contained complementary (missing) components to Kakar's consignment; there were also 18 cartons containing empty gift cases in the Mahendra consignment. Enquiries suggested declared values were much lower than the price of comparable toys in Hong Kong. The Custom House therefore clubbed the two consignments, treated them as parts of fully finished toys (banned under the Import Policy), proceeded against the importers for violation of Import Trade Control Regulations and for under-valuation. Mahendra Mechanical subsequently wrote to the Custom House relinquishing title to their goods, citing inability to pay demurrage and duty. The Additional Collector adjudicated and passed the impugned order which gave rise to these appeals.

Legal Issues Presented

  1. Whether the Custom House could validly "club" two separate consignments imported by two different firms and treat them together as parts of a single finished toy (a banned import) in order to adjudicate confiscation and penalties.
  2. Whether the assessable value should be enhanced for under-valuation by comparing the supposed combined consignment to comparable finished toys, i.e., whether valuation enhancement based on clubbing of consignments was justified.
  3. Whether a personal penalty could be imposed on M/s. Mahendra Mechanical Industries given that they had relinquished title to the goods under Section 23(2) of the Customs Act, 1962, prior to issuance of show cause notice and adjudication.

Arguments of the Parties

Appellant: M/s. Kakar Toys Industries (represented by Shri N.C. Sogani)

  • There was no valid ground for clubbing the two consignments because the imports were effected by two separate firms with no relation to one another; Kakar had no concern with Mahendra Mechanical Industries.
  • Relied on Calcutta High Court decision in Collector of Customs, Calcutta v. Mitsuny Electronic Works to argue consignments cannot be clubbed merely due to coincidence of arrival.
  • Provided correspondence with various suppliers showing independent dealings and a final indent/acceptance with M/s. Alltoys Co. Ltd.; they had in-house capacity to manufacture components not imported.
  • Contended the Custom House's valuation was erroneous because the department clubbed prices of both consignments to compute FOB of complete toys and compared that to complete toys; no comparison was made to the value of the mechanism imported by Kakar itself, and there was no direct evidence of under-valuation.
  • Argued that if clubbing is invalidated, the basis for under-declaration fails too.

Appellant: M/s. Mahendra Mechanical Industries (represented by Shri S.S. Sindhi)

  • Contended there is no evidence linking Mahendra Mechanical with Kakar Toys; they are separate firms and adjudication itself observed no direct evidence of relationship.
  • Submitted that Mahendra had abandoned the goods by letter dated 15-9-1987 in terms of Section 23(2) of the Customs Act, 1962, prior to issuance of the show cause notice; therefore there was no jurisdiction to impose a personal penalty on them.

Respondent/Department (represented by Shri S. Krishnamurthy, SDR)

  • Argued that Mahendra had effectively imported complete toys along with packing material; circumstances were significant and indicated planned split consignments rather than coincidence: same Hong Kong supplier, same vessel, orders placed at same time, and consecutive invoice numbers.
  • Maintained that consignments were split supplies planned to evade prohibition on finished toys (consumer goods under Serial No. 122 of Appendix 2, Part-B of 1988 Import Trade Control Policy).
  • Contended department enquiries showed comparable toys' values were much higher and therefore enhancement of assessable value by the Custom House was justified.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Collector of Customs, Calcutta v. Mitsuny Electronic Works (Calcutta High Court) Consignments cannot be clubbed merely because, if assembled together, they would form a complete machine; one must look at respective import licences and not mere assembly potential. The court relied on this precedent to emphasize that clubbing requires material evidence of linkage and not mere coincidence or the theoretical ability to assemble parts into a finished product.
M/s. Sharp Business Machines (Pvt.) Ltd. v. Collector of Customs, Bangalore (Tribunal) = 1989 (21) ECR 229 Various consignments cannot be clubbed to determine the nature of the goods imported; separate consignments should not be aggregated to alter classification. The court cited this decision to support the proposition that separate consignments should not be clubbed to recharacterise the nature of imports in absence of evidence justifying such aggregation.
Susha Electronics Industries v. Collector of Customs & Central Excise, Rajkot (Tribunal) Clubbing of consignments (T.V. components from different places/consignments) was held invalid where department sought to form a complete set by aggregation. The court applied this precedent to reinforce that department's clubbing in the present case was not valid without material proof of an organized scheme to import split parts as a single banned finished good.

Court's Reasoning and Analysis

The court began by identifying the core of the dispute: the Custom House's clubbing of two consignments and the consequent charges of unauthorised import and under-valuation which flowed from that clubbing. The Additional Collector had himself observed there was no direct link between the two firms, yet relied upon a series of significant similarities between the consignments.

The court examined those similarities acknowledged by the department: (a) one consignment contained mechanisms while the other contained plastic components that seemed to match; (b) quantities and items across consignments aligned to make complete toys; (c) assembly would require no manufacturing process beyond simple fitting; (d) the Mahendra consignment had 18 packages of empty boxes for finished product; (e) many parts bore "Made in Hong Kong" or "Made in Japan"; and (f) both consignments originated from the same Hong Kong supplier, arrived by the same vessel, orders placed at the same time, and invoices bore consecutive serial numbers.

The court then balanced these circumstantial similarities against evidence provided by the appellants: Kakar produced full correspondence with the Hong Kong supplier and other suppliers (showing an independent buying process), evidence of a final indent and its acceptance, and an un-rebutted submission that departmental officers had visited Kakar's factory and verified production capacity. The court also noted the differing conduct of the parties: Kakar pressed for urgent clearance and pursued its appeal vigorously despite confiscation of the other consignments, whereas Mahendra delayed formalities and later relinquished title.

The court reviewed relevant tribunal and High Court decisions on clubbing consignments (Mitsuny; Sharp; Susha) and extracted the legal principle that consignments should not be clubbed based solely on the fact that parts could together make a finished article; material evidence of an organized scheme or a substantive link is required—import licences and independent dealings are significant indicators.

Applying these principles to the record, the court concluded that the similarities, though significant, did not amount to sufficient evidence to establish that the two consignments were intentionally split parts of banned finished toys imported as such. As a result, the foundational act of clubbing failed evidentially, and the consequences flowing from clubbing (enhanced valuation and personal penalty on Mahendra) lacked support.

Regarding Mahendra Mechanical Industries, the court observed that they had relinquished title under Section 23(2) of the Customs Act by letter dated 15-9-1987, before the show cause notice and adjudication were issued; their goods were under absolute confiscation and, in the absence of a valid foundation for clubbing, a personal penalty on them was not maintainable.

Holding and Implications

Final Disposition:

  • The appeal of M/s. Kakar Toys Industries is allowed.
  • The personal penalty on M/s. Mahendra Mechanical Industries is set aside.
  • The order of absolute confiscation of the consignment imported by M/s. Mahendra Mechanical Industries is maintained.

Implications:

  • Because the court found insufficient evidence to justify clubbing the two consignments, the department's valuation enhancement and under-valuation charges premised on such clubbing could not be sustained as against the appellant M/s. Kakar Toys Industries.
  • Since M/s. Mahendra Mechanical Industries had relinquished title under Section 23(2) prior to adjudication, and because the clubbing basis for penalty was unsupported, the personal penalty against them was quashed although the physical confiscation of their goods remained in force.
  • The court applied existing tribunal and High Court authorities on the limited circumstances in which consignments can be clubbed; the decision reverses departmental findings in this factual matrix and confines the circumstances in which aggregation of separate imports may be used to recharacterise goods.

This summary is based exclusively on the contents of the provided opinion and does not introduce information beyond that text.

    Kakar Toys Industries v. Collector of Customs

    [Order per : K.S. Venkataramani, Member (T)]. These are two appeals preferred against the order dated 28-11-1988 passed by the Additional Collector of Customs, Calcutta by which he had ordered confiscation of the consignment of Mechanism for battery operated toys imported by appellants M/s. Kakar Toys Industries under Section 111(d) and 111(m) of the Customs Act, 1962 levying a fine in lieu of confiscation of Rs. 1,00,000/-, besides imposing a penalty of Rs. 20,000/- on them under Section 112 of the Customs Act, 1962. By the same order, the Additional Collector also ordered absolute confiscation of the plastic moulded components of toys imported by appellants M/s. Mahendra Mechanical Industries and also imposed a penalty of Rs. 10,000/- on them. The facts in brief are that the Custom House agents of appellant M/s. Kakar Toys Industries filed Bill of Entry on 11-5-1987 of a consignment containing parts of toys imported from M/s. Alltoys Co. Ltd., Hong Kong. Similarly lateron, on 24-8-1987, the same Custom House agents filed Bills of Entry on behalf of appellant M/s. Mahendra Mechanical Industries for a consignment of plastic moulded component parts. Here also, the supplier from Hong Kong was the same, namely, M/s. Alltoys Co. Ltd. On examination of the consignment of appellant M/s. Kakar Toys Industries, the Custom House found that most of the parts which go to make the complete finished toys were present in the consignment. Although certain parts were not imported, but the Custom House was of the view that this would not affect the basic character of the imported goods. In regard to the goods covered by the Bill of Entry filed for appellants M/s. Mahendra Mechanical Industries, the Custom House suspected that the other consignment contained the balance components from the consignment of M/s. Kakar Toys Industries, which, when put together, would make complete toys. On making enquiries, it was found from the Custom House agents that they had not received any documents from M/s. Mahendra Mechanical Industries for the clearance of the goods. The Custom House, therefore, seized the consignment imported by M/s. Mahendra Mechanical Industries and examined the goods in the presence of their Custom House agents. This was done in view of the inordinate delay in filing of the Bill of Entry and other documents by the Importer. On examination, out of 172 cartons imported, 18 packages contained only empty gift cases for packing the toys. The other packages were found to contain what according to the Custom House, were the missing components of toys from the consignment imported by appellants M/s. Kakar Toys Industries. A detailed examination of the two consignments led the Custom House to believe that the mechanism imported by M/s. Kakar Toys Industries was complementary to the moulded component parts imported by M/s. Mahendra Mechanical Industries and when clubbed, the two consignments would go to make complete fully finished toys. From this, enquiries were made by the Custom House regarding the price of comparable toys at Hong Kong, which showed that the value declared for the consignment by the appellants was much below the value of comparable goods. The Custom House, therefore, was of the view that all the components imported by the two parties are made in such a way that unless the two lots are brought together, they are of no use. Therefore, the Custom House clubbed the two consignments together and proceeded against the two appellants for violation of Import Trade Control Regulations because the fully finished toys are banned items under the Import Policy being in the nature of consumer goods and the appellants were also proceeded against for under-valuation. Meanwhile, appellants M/s. Mahendra Mechanical Industries also wrote to the Custom House relinquishing their title to the goods on the ground that they cannot afford to pay the demurrage charges and duty. The Additional Collector adjudicated the case resulting in the impugned order against which the present appeals have been preferred.

    2. Shri N.C. Sogani, the learned consultant appearing for appellants M/s. Kakar Toys Industries submitted that there was no valid ground for clubbing the two consignments because the import had been effected by two separate firms having no relation with each other. Appellants M/s. Kakar Toys Industries, the consultant urged, had no concern with appellants M/s. Mahendra Mechanical Industries. He cited and relied upon in this connection the decision of the Calcutta High Court in the case of Collector of Customs, Calcutta v. Mitsuny Electronic Works -, wherein the High Court held that consignments cannot be clubbed if by sheer coincidence of the consignment arrived at a time; that was also a case where the Custom House also sought to club the imports made by the Export Houses which were imported together although the Export Houses were separate entitles. As regards valuation, the learned consultant referred to the correspondence of the appellants with various suppliers and their ultimately placing the order with M/s. Alltoys Co. Ltd., Hong Kong. Appellants have a factory in which they have the equipment to manufacture the components not imported by them. In fact, during the enquiries conducted by the Custom House, their factory had been visited by the Preventive Officers of the Delhi Collectorate and the facts verified. On valuation, it was further pointed out that the value adopted by the Custom House was erroneous because the department had clubbed the prices of the goods imported by the appellants and those by M/s. Mahendra Mechanical Industries and had worked out the FOB price of complete toys and have compared the price so arrived with that of complete toys manufactured by other manufacturers and the value has been enhanced on these basis. No comparison has been made on the value of the mechanism by the appellants relating to the value of comparable mechanism. There was also no direct evidence regarding under-valuation. The learned consultant urged that the very basis of the enhancement of the value was the clubbing of the consignments and when it is shown that there is no valid ground for such clubbing, there cannot be any charge of under-declaration of the value also.

    3. Shri S.S. Sindhi, the learned counsel represented the appellants M/s. Mahendra Mechanical Industries. He also contended that there is no evidence to show that they and the other appellants in this case are in any way linked up. The two are, according to the appellants, separate firms. The learned counsel also referred to the adjudication order which itself observed that there is no direct evidence of such relationship. The learned counsel further pointed out that M/s. Mahendra Mechanical Industries had abandoned the goods in terms of Section 23(2) of the Customs Act, 1962 by their letter dated 15-9-1987, which was prior to the issue of the show cause notice. The learned counsel concluded that in the circumstances, there was no jurisdiction for a personal penalty on the appellants M/s. Mahendra Mechanical Industries.

    4. Shri S. Krishnamurthy, the learned SDR appearing for the department contended that appellants M/s. Mahendra Mechanical Industries had imported complete toys alongwith the packing material. He further referred to the very significant circumstances regarding the import, namely, the goods were from the same supplier in Hong Kong by the same vessel. The orders were also placed by both the parties at the same time and the related invoices have consecutive serial numbers. Therefore, it was not a mere coincidence but a planned import of complete toys in split-up consignments and being consumer goods under Serial No. 122 of Appendix 2, Part-B of 1988 Import Trade Control Policy, the goods were banned for import. The Custom House had found by enquiries that the value of comparable toys was much higher and, therefore, had rightly enhanced the assessable value.

    5. We have carefully considered the submissions made by the learned consultant, the learned counsel and the learned SDR. The origin of the case is the clubbing of the two consignments by the Custom House and the charges of un-authorised import and under-valuation followed from such clubbing. This is the admitted position even according to the Additional Collector’s adjudication order. It is seen that the Additional Collector has himself observed in paragraph 13 of his order that no direct link between the two factories has been established. But reliance, however, is placed on a series of significant similarity between the two consignments. These are that appellants M/s. Kakar Toys Industries have imported only mechanism whereas appellants M/s. Mahendra Mechanical Industries only the plastic components of toys which, according to the Custom House, is a peculiar circumstances of matching. Secondly, in both the consignments, items have been imported in certain specified quantities and the two consignments match so well as to make one that is to say the toy is complete as the finished product. The further aspect was that to assemble the separate parts did not require any process of manufacture, but a simple operation of fitting the items with a screw driver would suffice. The Custom House also noted the fact that in the consignment of appellants M/s. Mahendra Mechanical Industries, there were 18 packages containing empty boxes for the finished product of the complete toys and most of the parts imported also bored the inscription ‘Made in Hong Kong’ or Made in Japan indicating that the two consignments was the breaking up of one toy. Added to this was the circumstance that the goods were from the same supplier carrying by the same vessel against the order placed at the same time and the invoices bearing consecutive serial numbers. No doubt, these are all very significant features which cannot be ignored. But the question is whether there is sufficient evidence to say that the two consignments are the split supplies which, if put together, would go to make complete toys which are banned for import. It is, in this connection, we observe that appellants M/s. Kakar Toys Industries have produced the whole of their correspondence with the supplier M/s. Alltoys Co. Ltd. and they have also produced correspondence which show that they were in touch with other suppliers of these components like Universal Trading Co., Hong Kong, Sing Shine Co. Ltd. and Wealthy Toys Company. Copies of this correspondence are available in pages 24-40 of the Paper-book filed by this appellant and from this, it is seen that there was a final indent dated 22-12-1986 and its acceptance by the supplier in January 1987 with reference to that indent. Another evidence which is available on record is the un-rebutted submission of this appellant that the officers of the department at Delhi had in fact, visited their factory and the appellants had explained the position to them and also indicated their production capacity. We also note that while the other appellant M/s. Mahendra Mechanical Industries did not come-forth immediately to file Bill of Entry and clear the consignment, the appellants M/s. Kakar Toys Industries were expressing urgency for the clearance of their consignment. In the same light, we note that this appellant has further persued vigorously the case for clearance of their consignment in spite of the order of absolute confiscation of the other consignment imported by M/s. Mahendra Mechanical Industries, although that other consignment, according to the Custom House is complementary to the consignment of this appellant. In this background, we observe that there are certain precedent decisions of the Tribunal and the High Court regarding the criteria to be adopted for such clubbing. In the case of Collector of Customs, Calcutta v. Mitsuny Electronic Works - , the Hon’ble High Court of Calcutta had held that one has to look the respective import licences and not to the fact that if all the consignments covered by all the Bills of Entry are assembled together, there will be a complete machine. Similarly, the Tribunal in the case of M/s. Sharp Business Machines (Pvt.) Ltd. v. Collector of Customs, Bangalore - (Tri.) = 1989 (21) ECR 229 held that various consignments cannot be clubbed to determine the nature of the goods imported. That was a case where the same importer filed separate Bills of Entry in two separate consignments of goods from different suppliers which when put together would, according to the Custom House, make for complete plain paper copying machine. Similarly, in the case of Susha Electronics Industries v. Collector of Customs & Central Excise, Rajkot - , the Tribunal held that clubbing of two consignments of T.V. components, one at Kandla Port and another at Air Cargo Complex at Ahmedabad is not valid. There also, the two consignments were separately imported by the same importer and it was the department’s case that when clubbed together, these would form a complete T.V. set. Therefore, in this case, when the two consignments are imported by two different firms, which even according to the department have not been established to be related to one another, and when evidence is available to show that one of the company, namely, M/s. Kakar Toys Industries had independently settled the price with the present supplier, after correspondence and after enquiries with other suppliers, then in such circumstances the two cannot be clubbed together in the way the Custom House has done, in the absence of material evidence to support such clubbing on the basis that the two firms are only in the nature of a facade for evading the prohibition of the import. So far as the other appellants M/s. Mahendra Mechanical Industries are concerned, they have already abandoned the goods in terms of Section 23(2) of the Customs Act, 1962, according to which the owner of any imported goods may, at any time, before an order for clearance of the goods for home consumption has been made, relinquish his title to the goods and thereupon, he shall not be liable to pay the duty thereon. This appellant has relinquished the title to the goods by their letter dated 15-9-1987 after filing the Bill of Entry and before the Show Cause Notice was issued and before the adjudication proceedings had been started. The goods imported by them are now under absolute confiscation. As regards the personal penalty on them, we find that it is also linked to the main plank of the department’s case that the import by the two appellants forms part of one and the same finished goods, but when we have found that such clubbing of the two consignments is not borne out by evidence on record, there is no other ground in the impugned order on which the penalty on this appellant is maintainable. So also on the question of valuation because of the finding that the two consignments cannot be clubbed, the charge of under-valuation cannot succeed because it is also based on the premises that the two consignments being one and the same should be clubbed to form the basis of import of the banned item, namely, fully finished toys.

    In the result, the appeal of M/s. Kakar Toys Industries is allowed. The personal penalty on appellants M/s. Mahendra Mechanical Industries is set aside. The order of absolute confiscation of the consignment imported by them is maintained. The appeals are disposed of in the above terms.

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    Kakar Toys Industries v. Collector of Customs
    (Sep 25, 1989)