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2017 (10) TMI 364 - AT - CustomsConfiscation - import of stainless steel drums - differential duty was confirmed in the impugned order on the ground that the privilege of exemption allowed to packaging material in N/N. 184/76-Cus dated 2nd August 1976 was not available to the importer as the drums did not meet the criteria listed therein - eligibility of ‘stainless steel drums’ to exemption as packaging material - Held that: - With the ‘stainless steel drums’ being ineligible for exemption, they are to be subject to assessment for appropriate duty. It is the contention of Learned Counsel that the impugned order has not complied with the statutory prescriptions relating to valuation and that no consideration had been contracted with supplier of the goods for the packaging material. Consequently, it was argued that the adjudicating authority should have accorded weightage to the affidavit of the supplier instead of relying upon a pro forma invoice of M/s Imperial Container Pte Ltd to hold that no differential duty was recoverable. The impugned order has concerned itself primarily with the proposal to confiscate the ‘stainless steel drums’ and for imposition of penalty under section 111 and section 112 respectively of Customs Act, 1962. With our finding on duty liability devolving on the packaging material consequent upon ineligibility for exemption, it necessarily follows that compliance with the regime of the EXIM Policy, as prevailing then, must also be gone into. There is no dispute that the drums are made of ‘stainless steel’ and that these were not importable except through designated canalizing agency. Import by any another was permissible only against a valid licence which the importer-appellant, admittedly, was not in possession of. On behalf of the appellant, it is claimed that they had no intention of importing any goods that were not permitted under the EXIM Policy. A plain reading of section 111(d) of Customs Act, 1962 along with the provisions of the EXIM Policy, leave no doubt that the imported ‘stainless steel drums’ are liable to confiscation. The impugned order cannot be faulted to that extent - the offence of import without licence did occur in 1978-79 and necessary consequences must follow. The confiscation of goods in the impugned order is confirmed. Considering the various circumstances narrated above, the importer-appellant is permitted to redeem the goods on payment of fine of ₹ 5,00,000 within 60 days of this order. In accordance with section 125 (2) of Customs Act, 1962, the redemption is subject to payment of duty which will be determined by the Asst Commissioner of Customs, New Customs House, Mumbai in accordance with law on finalizing the ‘less charge notices.’ In the event of failure to exercise the option, the confiscation is rendered absolute and the goods to vest in the Central Government in accordance with section 126 of Customs Act, 1962. The ends of justice will be met by restricting the penalty imposed on Shri Vinod Jain and Shri Rakesh Jain to ₹ 50,000 each - appeal allowed in part.
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