AJIT KUMAR SENGUPTA, J. ( 1 ) THE appellant imported a consignment, weighing 1995. 180 Metric Tons of Seconds/defective Zinc Aluminium Sheets in coils from European Economic Community in August, 1985 and declared the value of the goods at Rs. 2440. 76 per metric ton. On 25th September, 1985, the said goods were examined on the original Bill of Entry and the goods were found to be as per declaration on the Bill of Entry. There is no dispute that the goods imported are seconds/defective Zinc Aluminium Sheets in Coils. The appellant kept the goods in the warehouse of the West Bengal State Warehousing Corporation. ( 2 ) AFTER over a period in September/october, 1986, the Customs Authorities assessed the value of the goods at Rs. 3,995/- per metric ton against the appellant's declared value of Rs. 2,440. 76 per metric ton. ( 3 ) THE appellant moved a writ application in this Court challenging the said enhancement and asserting that there was no basis or material available with Customs Authorities to enhance the value of the goods. The Learned Single Judge passed an interim order directing release of the goods upon the appellant's furnishing a bank guarantee for 50% of the disputed customs duty and a personal bond for balance of the disputed duty. Pursuant to the said order, a bank guarantee of Rs. 15,66,005/- representing 50% of the total disputed duty of customs was furnished by the appellant on 29th June, 1987. The appellant also furnished a bond in terms of the said order. ( 4 ) BEFORE the appellant could take delivery of the said goods, the Special Investigation Branch of the Customs House issued instructions to the West Bengal State Warehousing Corporation Paharpur, where the goods were kept, not to deliver the goods to the appellant without the permission of the Special Investigation Department. The appellant then moved another writ application in this Court for release of the goods and also for a direction that the warehousing charges were to be borne by the Customs Authorities. This was rejected by B. L. Jain, J. Against that order, an appeal was preferred in this Court. ( 5 ) WHILE the matter was pending in the Appeal Court, there had been a theft at the Warehouse of the West Bengal State Warehousing Corporation at Paharpur and 18 coils weighing approximately 96 metric tons were stolen. This was rejected by B. L. Jain, J. Against that order, an appeal was preferred in this Court. ( 5 ) WHILE the matter was pending in the Appeal Court, there had been a theft at the Warehouse of the West Bengal State Warehousing Corporation at Paharpur and 18 coils weighing approximately 96 metric tons were stolen. The value of the goods which were stolen according to the appellant was Rs. 25 lakhs although the said goods were insured by the Warehousing Corporation to the extent of Rs. 5 lakhs only. ( 6 ) THE appellant wanted to remove the goods from the West Bengal State Warehousing Corporation on whom they lost faith. The Warehousing Corporation claimed that they were entitled to the warehousing charge in respect of the entire goods including the goods which was stolen from the very beginning till the date of their actual removal to another warehouse and their total claim was approximately Rs. 23. 0 lakhs. This Court permitted the removal of the goods by the appellant from the warehouse of the West Bengal Warehousing Corporation to the Customs Bonded Warehouse at Ghusuri, Howrah, on condition that the appellant will not be entitled to remove the goods until the lien in respect of the claim of the West Bengal State Warehousing Corporation is discharged. Against that order, the West Bengal State Warehousing Corporation preferred an appeal before the Supreme Court which in its final order directed the writ petitioner to furnish a security to the extent of Rs. 10 lakhs in the form of security towards the claim of the Warehousing Corporation. The appellant thereafter furnished a security of Rs. 10 lakhs in the form of fixed deposit before the Registrar, Original Side, Calcutta. As mentioned hereinabove, the goods stolen were insured by the West Bengal State Warehousing Corporation for Rs. 5 lakhs and this Court directed that the Corporation may realise the said amount from the Insurance Company and retain the same. The Corporation thus has got Rs. 15 lakhs towards security out of a total claim of Rs. 23. 0 lakhs. ( 7 ) SINCE the Customs Authorities urged that the value of the goods imported by the appellant should be Rs. 3,995/- per metric ton as against the appellant's declared value of Rs. 2,440. The Corporation thus has got Rs. 15 lakhs towards security out of a total claim of Rs. 23. 0 lakhs. ( 7 ) SINCE the Customs Authorities urged that the value of the goods imported by the appellant should be Rs. 3,995/- per metric ton as against the appellant's declared value of Rs. 2,440. 76 and as the appellant contended that there was no basis on which the department could value the goods at Rs. 3,995/- per metric ton and the Department failed to discharge the onus of proving mis-declaration by an order dated 26th September, 1989 this Court gave liberty to the Collector of Customs, Calcutta to pass an assessment order after giving reasonable opportunity to the appellant of being heard and after furnishing the appellant with all documents. ( 8 ) PURSUANT to the aforesaid order, the Collector of Customs handed over to the appellant certain documents, and the appellant also furnished copies of certain documents to the Collector of Customs in support of their respective cases. ( 9 ) ON 3rd November, 1989, the Collector of Customs, Calcutta passed an order of assessment purporting to hold that the value of the goods imported by the appellant was Rs. 3,995/- per metric ton equivalent to US $ 320 per metric ton. The appellant was aggrieved by the aforesaid order dated 3rd November, 1989 and urged several grounds for assailing the same. In that view of the matter, this Court gave liberty by an order dated 6th December, 1989, to the appellant to file a supplementary affidavit challenging the said order of the Collector of Customs. ( 10 ) AFTER perusing the order of the Collector of Customs dated 3rd November, 1989, in the context of the supplementary affidavit filed by the appellant affirmed in January, 1990 coupled with letter dated 25th October, 1989 written by M/s. Biswanath Susil Kumar, the sole proprietory concern of the appellant to the Collector of Customs, Calcutta and the various documents produced before this Court, we are of the view that the Collector of Customs in passing the said order dated 3rd November, 1989 had committed certain grave errors and failed to apply the principles of valuation for the purpose of determination of the Customs duty payable as enunciated in the Customs Valuation Rules. ( 11 ) THE Customs Department before the Collector of Customs had adduced as many as 13 instances, to show under invoicing. It appears that out of the said 13 instances, instance Nos. 1, 6 to 11, 12 and 13, i. e. , as many as 9 instances referred to importations which were of a period different from the subject importation. The example of Serial No. 1 relates to import in October, 1986, Serial Nos. 6 to 11 relate to import in 1984 and Serial Nos. 12 and 13 relate to importation of October and August, 1987. The subject consignment, on the contrary, had been imported in August, 1985. Therefore, the evidence adduced by and/or before the Collector of Customs do not relate to the period of importation and hence are irrelevant for the purpose of Customs Valuation Rules framed under Section 14 of the Customs Act, 1962. Besides, the instances are also not in respect of the goods which are from the same country of origin as the imported consignment in question. The Serial No. 1 is of U. K. origin, Serial Nos. 6 to 11 are of Australian origin while the said importation is of EEC country of origin. ( 12 ) THE instances in Serial Nos. 6 to 13 referred to importations which were of a very small quantity as compared to the quantity imported under the subject importation. Under the Customs Valuation Rules, the comparable goods must be of the same country of origin, more or less of the same quantity and in respect of the same period. Therefore, the evidences collected in Serial Nos. 1, 6 to 11, 12 and 13 are not comparable and their valuation cannot be of any assistance in proving under-invoicing. The importation mentioned in Serial Nos. 2 and 3 are more or less comparable and in both the cases the importations had taken place at the same place, i. e. , Calcutta and the rate is US Dollar 132 F. O. B. (US Dollar 134 C. I. F.) as against the subject importation of US Dollar 197 C. I. F. The appellant's importation is, therefore, at a price higher than the price shown in Serial Nos. 2 and 3. In respect of Serial Nos. 2 and 3. In respect of Serial Nos. 4 and 5, the importations were made at US $ 150 and US $ 149 F. O. B. respectively, which works out to approximately US Dollar 211 per metric ton C. I. F, Calcutta. The contention of the Collector of Customs that in these cases the Customs Department loaded the value to US $ 320 and since the goods were cleared at that value, the valuation of the said goods should also be cleared at that rate, cannot be accepted as sufficient for the Department to discharge the onus cast upon them to prove under-invoicing. ( 13 ) IT is a settled law that the onus of proving mis-declaration regarding the price mentioned in the Bill of Entry is on the Department and this onus can be discharged only on proving of proper fact which would discredit the price mentioned in the Bill of Entry and not on the basis of mere suspicion and surmises. It is also a settled law that if there is no sufficient evidence to establish the charge of under-valuation and the Department is not in a position to produce sufficient evidence to show that identical or similar goods have been ordinarily sold or offered for sale or delivery at the time and place and at a price adopted by the Department, the Department has to accept the invoice value of the imported goods for the purpose of assessment of customs duty. ( 14 ) IT also appears that before the hearing the appellant filed copies of three Bills of Entry under cover of the appellant's letter dated 16th October, 1989 in respect of importation of defective/seconds aluminium alloy-coated sheets which were imported and cleared at a value of Rs. 2,400/-, Rs. 2,478/- and Rs. 2,543/- per metric ton respectively, at Calcutta and Bombay. The aforesaid values had been accepted by the Calcutta and Bombay's Customs House respectively and the goods had been cleared on payment of duty. The Collector of Customs has not dealt with the cases of the two clearances at Bombay Port mentioned above and insofar as importation in Calcutta is concerned, stated that said valuation was accepted by mistake. However, no steps apparently had been taken against such mistaken valuation. ( 15 ) THE appellants have mentioned that a large number of consignments of seconds/defective aluminium sheets had been cleared at Rs. However, no steps apparently had been taken against such mistaken valuation. ( 15 ) THE appellants have mentioned that a large number of consignments of seconds/defective aluminium sheets had been cleared at Rs. 2,400/- per metric ton C. I. F. Calcutta. In this connection, on the order of the Deputy Collector of Customs in file No. S. 211/p/29/85a (iii) referred to by the appellant it has been contended that the Department cannot go on changing their stand and they are bound by the precedence created by them. Reference is made in this connection to the decision of this Court reported in AIR 1958 Calcutta 630; the ratio has been followed in several subsequent decisions of this Court. We are impressed not only by the contention of the appellant that the Department has not been able to prove the charge of mis-declaration of value of the goods and the instances referred to by Collector of Customs in his order were not relevant as they did not fulfil the requirement of Section 14 of the Customs Act, 1962 and the Customs Valuation Rules but also we find that the Collector of Customs had gone into the realm of conjectures when he held that since a number of importers had agreed to get their consignments released at an assessable value of US $ 320 per metric ton as claimed by the Department, US $ 320 must be the correct price of the goods and therefore there is under-invoicing. The Collector failed to see that for the purpose of determining the real value for the purpose of assessment the statute has framed the Rules and the Collector of Customs cannot act bypass in the said Rules. Even if it is assumed that in some cases the demand of the Department had been made by some importers by allowing their goods to be loaded that is no ground for asserting that the appellant has also under-valued the goods. The contention of the Collector of Customs that even after assessment of the goods at the enhanced value of the US $ 320 per metric ton, the appellant would gain sufficiently by selling the products in local market and that justifies a higher assessment, is an argument which is absurd. No tax can be assessed or levied without due authority of law. No tax can be assessed or levied without due authority of law. The gain or loss of an importer has no relevance as rightly contended on behalf of the appellant that if the argument of the Collector of Customs is to be accepted then the Government would have to accept lower value for the purpose of assessment if due to certain circumstances the local market falls and the importer makes a loss. ( 16 ) HAVING regard to the facts and circumstances of this case and having regard to the nature of the disputes raised as to the valuation, we are of the view that the matter should be remanded to the Collector once again so that the Collector can look into all the relevant materials in determining the correct valuation of the imported goods in question for the purpose of assessment of customs duty. We, accordingly, set aside the order of assessment made by the Collector on 3rd November, 1989, and remand the matter to the Collector of Customs with a direction upon him to pass a fresh assessment order after giving a hearing to the appellant within a fortnight from date of communication of this order. We make it clear that before hearing the appellant, the appellant must be supplied with copies of all the documents on which the Collector proposes to rely while making the assessment. The Collector of Customs is further directed to forward a copy of the order of assessment to be passed by him to the appellant within a week from the date of passing the same. ( 17 ) THERE is another aspect of the matter. Admittedly, 18 coils weighing approximately 96 metric tons of the imported goods have been stolen from the Customs Bonded Warehouse. No Customs duty can be levied in respect of the goods which have been stolen and the appellant cannot be asked to pay customs duty in respect of the said 18 coils. The appellant, therefore, is only liable to pay customs duty in respect of the goods which were found after the theft and weighed at Paharpur at the weigh bridge of Falcon Steel Corporation before they were removed to the bonded warehouse at Ghusuri, Howrah. The Collector of Customs shall bear in mind the aforesaid facts in determining the customs duty to be payable by the appellant upon the assessment to be made. The Collector of Customs shall bear in mind the aforesaid facts in determining the customs duty to be payable by the appellant upon the assessment to be made. But no customs duty shall be levied on the goods which have been stolen and this has not been disputed by the learned Counsel for the respondents. ( 18 ) THE other issue is with regard to the claim of the West Bengal State Warehousing Corporation amounting to Rs. 23 lakhs. The appellant was directed to secure a part of the said claim by fixed deposit receipt to the extent of Rs. 10 lakhs. Pursuant to the orders dated 5th April, 1990 and 12th April, 1990 passed by this Bench, the Customs Authorities and West Bengal State Warehousing Corporation to realise 30 coils of the subject goods without any duty and warehousing charges. The duty in respect of 30 coils even at the rate of Rs. 3,995/- per metric ton comes to Rs. 8 lakhs. As a matter of fact, the appellant has deposited Indira Vikas Patra for Rs. 40 lakhs and by way of security with the Registrar, Original Side. The appellant is, therefore, directed to deposit Indira Vikas Patra of the value of Rs. 8 lakhs with the Collector of Customs which shall be retained by him and adjusted, if necessary, against the duty payable by the appellant upon assessment of duty. ( 19 ) SO far as the West Bengal State Warehousing Corporation is concerned, a fixed deposit receipt of Rs. 10 lakhs has already been deposited with the Registrar, Original Side, pursuant to the order of this Court. A sum of Rs. 5 lakhs would be receivable or had already been received by the West Bengal State Warehousing Corporation from the Insurance company. Therefore, a further sum of Rs. 8 lakhs has to be secured by the appellant against the claim of the West Bengal State Warehousing Corporation. We, therefore, direct that Indira Vikas Patra of Rs. 8 lakhs now lying with the Registrar, Original Side, shall be retained by him. In other words, the fixed deposit receipt of Rs. 10 lakhs and Indira Vikas Patra of Rs. 8 lakhs shall be retained by the Registrar, Original Side, till 30th November, 1992. We, therefore, direct that Indira Vikas Patra of Rs. 8 lakhs now lying with the Registrar, Original Side, shall be retained by him. In other words, the fixed deposit receipt of Rs. 10 lakhs and Indira Vikas Patra of Rs. 8 lakhs shall be retained by the Registrar, Original Side, till 30th November, 1992. If within the time specified above, the West Bengal State Warehousing Corporation institutes any proceeding in respect of their claim against the appellant, the said security shall continue to the Credit Court of such suit until further orders of the Court where such proceedings may be initiated by the said Corporation. If, however, no such proceedings are initiated, in that event, the said fixed deposit receipt and Indira Vikas Patra of Rs. 8 lakhs shall be returned to the appellant by the Registrar, Original Side. Inasmuch as the entire claim of the West Bengal State Warehousing Corporation is secured, they can have no further lien over and in respect of subject goods. Their lien, in any, will stand shifted to the aforesaid security. ( 20 ) SINCE the balance goods shall be released by the Customs Authorities upon payment of the duty to be assessed by the Collector of Customs, there is no further need to retain any security in the form of Indira Vikas Patra or otherwise so far as the claim of the Customs is concerned. Accordingly, the entire balance of Indira Vikas Patra of Rs. 24 lakhs shall be released to the appellant. ( 21 ) THE Registrar, Original Side, is not entitled to claim any commission in respect of the furnishing and release of Indira Vikas Patra in terms of order passed by this Court. The Registrar, Original Side, shall return the aforesaid Indira Vikas Patra to the extent of Rs. 32 lakhs to the appellant within one week from the date of communication of this order. ( 22 ) THE appeal and applications are disposed of in terms of the forgoing order. There will be ho order as to costs. Filing of paper book dispensed with. Undertaking will stand discharged. .