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TMI Blog2009 (6) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... - under Section 14 of Customs Act, 1962 read with Rule 9 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 was ordered. (d) The impugned goods under Section 111(d) and 111(m) of the Customs Act, 1962 was confiscated, granting option to the importer to redeem the confiscated goods on payment of redemption fine of Rs. 5,00,000/- (Rs. Five lacs only) under Section 125 of the Customs Act, 1962, in lieu of confiscation. (e) Penalty of an amount equivalent to the duty and interest payable on the importer under Section 114A of the Customs Act, 1962 was imposed. 2.1 The appellant imported used dairy equipment called Benhil Butter Wrapping Machine - Model No. 8380 under EPCG Scheme. For such import, Bill of Entry No. 509438 dated 29-4-08 was filed declaring value thereof as AUD 40000 i.e. Rs. 15,02,880/- (CIF) on the basis of a certificate dated 1-2-08 issued by overseas Chartered Engineer. Customs Authority taking help of NIDB data relating to similar brand of different model i.e. 8304 and 8345 ranging value of Rs. 1.36 crores to Rs. 1.84 crores doubted the value of import. There was also material before Customs Authority in respect of same importer who had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on) Rules, 1993 and Rule 3 of the Foreign Trade (Exemption from Application of Rules in Certain Cases) Order, 1993 with fraudulent and wilful intention to evade duty. The said goods, therefore, are liable to confiscation under Section 111(d) and 111(m) of the Customs Act, 1962; and (ii) Since the value of the impugned goods is substantially more than the value of the EPCG licence as is evident from the amount of duty saved and amount of export obligation mentioned in the licence and since the importer wilfully mis-declared the value of the goods in order to avail the benefit of EPCG scheme against licence No. 2230000899 dated 9-4-2008 which was issued to the importer for the purpose of saving a duty amounting to Rs. 3,84,648/-, the benefit of EPCG scheme cannot be granted to the importer. 2.5 Ld. Commissioner while adjudicating the matter was of the view that truth and accuracy of the overseas Chartered Engineer's certificate dated 1-2-2008 in support of the declared value was doubtful. Noticing that the said certificate had not indicated the sale price of the supplier, the current CIF value of new machinery (i.e. as on 1-2-2008) if purchased during the material time and the natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a certificate on 31-5-2008. Such a denial is apparent from para-5 of the order of Adjudication. He submits that when the appellant is under EPCG scheme the role of Customs is ruled out. He drew our attention to Notification No. 97/2004-Cus. dated 17-9-2004. He submitted that the import and export undertaken through certain sea ports are entitled to the exemption. It was further argued that the Adjudicating Authority has examined all aspects of the matter as well as various decisions cited before him. But finally he rejected the valuation claimed by the appellant. Ld. Counsel relied on following decisions :- (1) Hy-Grade Pellets Ltd. v. CC reported in 2004 (171) E.L.T. 177. (2) Handtex v. CC reported in 2008 (226) E.L.T. 665. 4. Ld. DR Shri Sumit Kumar appearing for Revenue submits that finding made by the ld. Commissioner as to fraud in para-12 of the order holds good in view of place of loading apparent from page 27 (invoice) is Melbourne while page-28 which is a bill of lading shows the place of loading as Dublin. This inconsistency proved the fraudulent act of the appellant. Similarly the valuation certificate at page-30 showed nothing material particulars for which contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of manufacture, model no., price when new, etc. are mis-declared either in the Chartered Engineer's certificate or in the invoice. Both the parties are in dispute on valuation due to re-conditioning of the machine. The emphasis of the circular is to ascertain extent of re-conditioning. While the certificate produced by the Appellant and statement of Vice-President of appellant that shows no major re-conditioning was carried out, the certificate obtained by Revenue shows that the machine was re-conditioned. Extent of re-conditioning was therefore crucial question. When the appellant on 8-7-08 has not accepted value arrived in Departmental valuation certificate as is apparent from para-5 of the order of adjudication, Departmental valuer was neither asked to be examined nor required by Appellant to provide extent of reconditioning. Page-30 which is certificate issued by Chartered Engineer of abroad while shows model of machine as of 1994 and price of Model 8380 with accessories was AUD 70000 in 1994, that does not show value of new machinery (i.e. as on 1-2-08) whereas Departmental valuer's certificate discloses international market value to be Rs. AUD $ 2,67,000.00. 5.4 Significantl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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