TMI Blog2014 (5) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... ssification of the same under Customs Tariff sub-heading 84433920 and declaring the value of the goods as Rs.10,13,256/-. They also produced a Chartered Engineer's certificate showing the value of the goods as Rs. 13,51,080/-. However, the Revenue did not accept the declared value and found that contemporary clearances as per NIDB data would be showing the value of around Rs.19,59,937/-. Accordingly, the consignment was taken up for further inquiries. 2. The imported goods were examined and it was found that same were 105 pieces of old and used photocopier machines and different models along with their parts kept in 60 boxes. During examination it was found that two machines having model number IR 6000 and IR 330 found in place of IR-600 and IR-300 respectively. Accordingly, Revenue entertained a view that appellant mis-declared the consignment as also the value of the same and further, as the appellant was not having any license to import the said goods, the same were put under seizure on 28.8.2008. 3. It stand observed in the impugned order of the Commissioner that on verification of the prices from the market, it has come to the notice that models mentioned in the invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reflected as around Rs.20 lakhs. He submits that the reliance on the said certificate is not appropriate as there is no evidence to reject the transaction value. Submits the learned advocate that the transaction value has to be first rejected on the basis of substantial evidence and once the same is found to be incorrect only then the Revenue can resort to other measures for enhancing the value. For the above proposition, learned advocate has relied upon various decisions. As regards the quantum of redemption fine and penalty, he submits that on account of non-availability of license to import the old and used photocopier; Tribunal in number of cases has reduced the fine and penalty to 10% and 5% of the value of the goods. He prays for adopting the same treatment. 7. Learned DR, Shri P K Sharma, appearing for the revenue reiterates the finding of the lower authorities and submits that the appellants has himself agreed to pay the duty at the enhanced value. As such, he cannot be allowed to contend to the contrary. He submits that inasmuch as the goods stand examined by the department as also by various Chartered Engineers and the value stand arrived at Rs.20 lakhs approximate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 (232) ELT 575 (Tri-Ahmd)] as also in the case of Digitech Photocopier vs. CC Mumbai [2009 (91) RLT 68 (CESTAT-Del)]. In the case of Sri Venkatesh Enterprises vs. CC Tiruchirapalli [2005 (192) ELT 534 (Tri-Del)] Tribunal set aside the enhancement of value of old and used photocopier based upon the Chartered Engineer's certificate. Similarly, in the case of N K Enterprises vs. CC Tuticorin [2005 (190) ELT 271 (Tri-Del)] enhancement of value of old and used photocopier machines on the basis of Chartered Engineers certificate was set aside. 10. We also note that the adjudicating authority, in the impugned order has held that on verification of the price from the market it has come to the notice that model mentioned in the invoices are obsolete models and these models are around 5-10 years old and the manufacturers had discontinued their manufacturing and hence the prices were not available. In view of above acceptance of the fact by the adjudicating authority, the enhancement of the value based on Chartered Engineers certificate is not justified. Admittedly the photocopier in question were very old and obsolete models and the value of such old goods is dependent upon the cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Representative that the assessee in that case was repeatedly committing violation of the EXIM Policy. The Tribunal observed that inasmuch as in the earlier decisions the view has already been taken to impose fine and penalty at 10% and 5% of value, the Bench cannot deviate from the ratio of its own decision. The said decision of the Tribunal stand confirmed by the Hon'ble Kerala High Court reported as [2012 (278) ELT 172 (Ker)] when the appeals filed by the Revenue was dismissed. Hon'ble Court observed that discretion to fix the redemption fine and penalty is not be exercised in mechanical way but the same is to be exercised in objective manner by quasi judicial authorities and in the absence of any evidence that quantum of fine and penalty fixed by the Tribunal was on the lower side, the Revenues' prayer for enhancement of the same cannot be accepted. To the similar effect is decision of the Hon'ble Kerala High Court in the case of CC, Cochin vs. Office Devices [2009 (240) ELT 336 (Ker)] and the decision of the Tribunal in the case of CC, Cochin vs. Dilip Ghelani [2009 (248) ELT 888 (Tri-Bang)]. Some further reference can be made to the following decisions, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal against the Order-in-Original No. 57/2008 dated 10.10.2008 passed by the Commissioner of Customs, New Delhi, enhancing declared value of Rs. 10,13,256/- to Rs.19,59,937/- based on Chartered Engineer's Certificate and contemporaneous evidence of clearances as per NIDB Data and also levying redemption fine and penalty. The goods imported were 105 Pcs. of old and used Photocopy Machines of different model along with their parts kept in 60 boxes. These photocopiers were imported without any licence as required under Para 2.17 of Exim Policy 2004-2009. Land Port Charted Engineer's Certificate of origin regarding valuation and condition of old and used photocopier machine as required under CBEC Circular No.4/2008 dated 12.02.2009 was also not furnished. Those photocopier machines were seized and confiscated resulting in levy of duty as well as imposition of redemption fine of Rs.5,00,000/- and penalty of Rs.2.50 Lakhs under Section 112A of the Customs Act, 1962. 2. Ld. Member Judicial, in her Draft Order while setting aside the impugned order against enhancement of the value, did not disagree to impose redemption fine and penalty but reduced the same to 10% and 5% of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half. While rejecting the contentions of the assessee/appellant in that case that the imports had acted in good faith and bona fide and therefore assessee is entitled to claim entire redemption fine to be waived, this Court held that even in such cases the fixation of quantum of redemption fine would depend on the totality of the facts and circumstances of the case. 4. Learned judicial member held that because Tribunal has passed orders ordering reduction in the past, it was opted to follow the similar decisions noting that Bombay High Court Judgment in Tejas Proprietary concern of Tejus Rohit Kumar Kapadia 2012 (275) E.L.T. 175 (Bom.) required following of the judicial discipline. Reliance was placed by learned member in the case of Navpad Enterprises Vs. C.C., Cochin 2009 (235) E.L.T. 376 (Tri. Bang.) for drawing above conclusion. 5. The reasoning and finding recorded by the learned judicial member being not according to law as stated by Supreme Court in above case and facts on record, I record my separate order in the following paragraphs. 6. 105 Pcs. of old and used Photocopy Machines of different model alongwith their parts kept in 60 boxes were imported without licen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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