Home Case Index All Cases Customs Customs + AT Customs - 2013 (3) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2013 (3) TMI 597 - CESTAT AHMEDABADConfiscation of goods - import of three old and used machines - violation of the provisions of Exim Policy 2002 - 2007 - Enhancement in value of machinery - Difference of opinion - Majority order - Held that:- Since the certificate produced by the importers was not reliable because of the aforesaid reasons, the Department was within its right to appoint another panel of experts. The importers never challenged the composition/qualification of the Expert Committee nor did they ever challenge the findings given by the said Committee till the stage of adjudication. In fact, they requested the adjudicating authority not to issue any written show cause notice also. At this late stage, the appellants cannot be allowed to raise the ground of lack of qualification of the Expert Committee which will render the Revenue remediless. - As regards the certificate submitted by the importer, the same can be ignored as the same was not based on true state of the machineries or the documents. Since the Expert Committee nominated by the Department has given their opinion after minutely verifying the state and the year of make of the machineries. It is also not the claim of the appellants that the said examination by the Expert Committee was done in their presence. In view of all above factors, the report given by the Expert Committee appointed by the Revenue is more reliable. Once the transaction price was not reliable as the true assessable value, the only reasonable method was to determine the value on the basis of market enquiry as it would be next to impossible to find out a contemporaneous import of a similar machinery of similar vintage - Hence, the enhancement of value of the three machines to ₹ 16 lakhs should be upheld. EURO was introduced as an accounting currency only on 1-1-1999 and EURO notes entered circulation only on 1-1-2002. In this regard, a small write-up, as downloaded from Wikipedia, is enclosed. Hence, the prices of machineries manufactured around 1994 could never have been mentioned in EURO. This, coupled with the fact of mis- declaration of age of the machineries, necessitates the discard of certificate produced by the importer, as a whole. Mentioning of price in EURO when EURO was not even conceived makes it clear that the certificate was a sham. The value certified vide this certificate can also not be taken to be true on account of mis-declaration. There was a deliberate misdeclaration of description and value and a restricted commodity was sought to be illicitly imported, without processing a valid licence to import the same. Hence, the confiscation of machines is liable to be upheld. Chartered Engineer’s certificate which accompanied the imported consignment was rejected by the lower authorities due to the discrepancies noticed as regards factual findings of the motor and coolant pump having manufacturing year mentioned as 1979 and 1981 marked on them. After the said rejection of the Chartered Engineer’s certificate, the Customs authorities appointed a Committee of Experts to consider the age of the machinery - there is no serious challenge in determining the age of the machinery on the basis of experts appointed by the Customs authorities. I find that the contest of the appellant herein is that the age of the machinery cannot be determined on the year marked on the electrical part for which reliance was placed on the judgment of the Tribunal in the case of Vardhman Spinning & General Mills v. CC (2004 (6) TMI 76 - CESTAT, NEW DELHI). I find that when machines were inspected and the consignments were opened, it was in the presence of the assessee or their representative. This point is not disputed by the appellants anywhere in the grounds of appeal. If there is no dispute as to the inspection done by the experts as regards the age of the machines, only challenging the qualification of the said Engineer may not carry the case of the appellant any further. Confiscation of the machineries with option to the appellant to redeem the same on payment of redemption fine adjusted by the lower authorities is upheld. Similarly, penalty imposed upon the appellant is also upheld. However, the enhancement of assessable value by the lower authorities is set aside - Decided partly in favour of assesse.
|