2009 (6) TMI 249 - AT - Customs

Valuation due to re-conditioning of the machine - Mere difference in value as stated in invoice and bill of lading is not sufficient to conclude that there was fraudulent import - While certificate of Departmental valuer while mentioning reconditioning does not disclose extent of reconditioning the certificate obtained by the appellant rules out major reconditioning. This establishes that there was certain reconditioning. Both the certificates also disclose the value claimed by each other and also agree on the residual life of the machine Held that it is established fact that the machine was reconditioned - . The emphasis into the Circular No. 4/2008 dated 12-2-2008 is to ascertain extent of re-conditioning. - Departmental valuer was neither asked to be examined nor required by Appellant to provide extent of reconditioning. appellant-importer s plea that declared value was negotiated price found not to be supported by evidence therefore Departmental valuation remains unrebutted. - There is no dispute by either party as to arrival of the machine and existence of the machine in the custody of Revenue being confiscated in terms of order of adjudication. When we go through the Notification No. 97/2004-Cus. dated 17-9-2004 we are unable to agree that the EPCG covered goods cannot be subject to the question of valuation when the notification was issued under Section 25 of the Customs Act 1962 - . We reduce fine to Rs. 1, 00, 000/- from Rs. 5, 00, 000/- since the machine is to be put to use by appellant. - Penalty is also reduced to 20% of the duty amount payable as a measure to prevent recurrence of aforesaid practice. In the result appeal is allowed partly.

Issues Involved:
1. Denial of EPCG scheme benefits.
2. Rejection of declared value of imported goods.
3. Re-assessment of the value of imported goods.
4. Confiscation of imported goods and imposition of redemption fine.
5. Imposition of penalty equivalent to the duty and interest.

Issue-wise Detailed Analysis:

1. Denial of EPCG Scheme Benefits:
The appellant sought the benefit of the EPCG scheme for importing used dairy equipment, specifically a Benhil Butter Wrapping Machine, under license No. 2230000899 dated 9-4-2008. The Commissioner denied this benefit, concluding that the imported machine's value was substantially more than the value of the EPCG license. The Commissioner found that the appellant willfully misdeclared the value to avail the EPCG scheme benefits, which was intended to save a duty amounting to Rs. 3,84,648/-. The Tribunal upheld this decision, stating that the import was fraudulently made by suppressing the correct transaction value, contravening several provisions of the Customs Act, 1962, and the Foreign Trade (Development and Regulation) Act, 1992.

2. Rejection of Declared Value of Imported Goods:
The declared value of Rs. 15,02,880/- (CIF) for the imported machine was rejected by the Customs Authority. The Authority relied on NIDB data and previous imports by the same appellant, which indicated higher values for similar machines. The appellant's declared value was based on a certificate from an overseas Chartered Engineer, which the Commissioner found doubtful and lacking essential details. The Tribunal noted discrepancies in the valuation certificates provided by the appellant and the Department, particularly regarding the extent of reconditioning of the machine.

3. Re-assessment of the Value of Imported Goods:
The Customs Authority re-determined the value of the imported machine at Rs. 30,99,690/-. This re-assessment was based on a certificate from a Chartered Engineer engaged by the Department, which valued the machine at AUD 82,500. The Tribunal upheld this re-assessed value, noting that the appellant failed to rebut the Department's valuation effectively. The Tribunal emphasized that the Departmental valuer's certificate remained unchallenged and provided a more reliable valuation compared to the appellant's certificate.

4. Confiscation of Imported Goods and Imposition of Redemption Fine:
The imported goods were confiscated under Sections 111(d) and 111(m) of the Customs Act, 1962, with an option to redeem the goods on payment of a redemption fine of Rs. 5,00,000/-. The Tribunal reduced the redemption fine to Rs. 1,00,000/-, considering that the machine was to be put to use by the appellant. The Tribunal found that while the confiscation was justified, a reduced fine was appropriate to balance the penalty with the appellant's intended use of the machine.

5. Imposition of Penalty Equivalent to the Duty and Interest:
A penalty equivalent to the duty and interest payable was imposed on the appellant under Section 114A of the Customs Act, 1962. The Tribunal reduced this penalty to 20% of the duty amount payable, as a measure to prevent the recurrence of such practices. The Tribunal acknowledged the appellant's failure to prove the absence of substantial reconditioning and to provide any contemporaneous import evidence of similar goods, thereby justifying the imposition of the penalty.

Conclusion:
The Tribunal partly allowed the appeal, upholding the re-assessed value of the imported machine and the imposition of duty. However, it reduced the redemption fine from Rs. 5,00,000/- to Rs. 1,00,000/- and the penalty to 20% of the duty amount payable. The Tribunal also directed that the consequences of this order be communicated to the EPCG Scheme licensing authority for necessary action under the law.

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