TMI Blog2014 (11) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... een settled and would amount to giving premium to the negligence of the Department especially when the Commissioner of Customs, CESTAT and the High Court had all held in favour of the noticees and have directed return of all the 78 bars of gold to them. More than 8 years have passed since the gold bars were seized and there can be no justification for the matter to be dragged on further on account of the laches of the Department. It is legally not feasible for this appellate authority, which is subordinate to the Hon’ble CESTAT to entertain this appeal. The appellant-department is directed to approach the Hon’ble CESTAT and seek a proper resolution for their ineptness - matter remanded back - Decided in favour of appellants. - Order-in-Appeal No. GOA/CUS/GSK/10/2013 - - - Dated:- 31-1-2013 - Dr. G. Sreekumar Menon, Commissioner (Appeals) Shri Pranhat Ranjan, P.O., for the Department. Shri Hemant H. Dave, Advocate, for the Assessee. ORDER This Revenue appeal has caused a piquant situation. Facts leading to the present appeal are that : M/s. Saidutta Enterprises, Shop No. 397/1, Ejipura Main Road, Vivekanand P.O., Bangalore 47 (hereinafter referred to as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me and that they were not aware that the same were not freely importable as it was not specifically mentioned in the negative list of EXIM Policy, 1997-2002. 4. These Tips were not consumer goods and could not directly satisfy human needs, that the same were used in metal cutting industry as raw material and fixed on edges of tools for cutting. 5. They had informed that the department intends to enhance the declared price from ₹ 153.30 per kg to 210.00 per kg and accordingly, the total declared value of ₹ 6,80,652/- would be enhanced to ₹ 9,32,400/- (CIF) which was unjust and not acceptable. 6. Goods were of U.S. origin 7. There was no misdeclaration either in description or in quantity and as such their declared value be accepted as there was no reason to reject the same that any enhancement or loading would be arbitrary. 8. The time gap between the present imports and the one being compared was more than six months. Besides, the quantity under clearance was less than half of the quantity which was being compared; as a result, the transactions were at different commercial levels. The matter was adjudicated by Joint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of assorted size, rusted and some of the Tips had their edges chipped, thus, the segregation and proper valuation was required; 5. The Adjudicating Authority and the Appellate Authority did not consider that the Appellants had produced the bank attested Invoice which is the International document, disclosing the true and correct value, thus the loading of the value was absolutely unwarranted and unjustified and same caused great harm, injury and loss to the Appellants, and the same deserves to be quashed and set aside at once; 6. The Adjudicating Authority and the Appellate Authority erred in confiscating the impugned Goods and ought to have ordered it s clearance only on payment of Customs Duty on the transactional value; 7. The Adjudicating Authority and the Appellate Authority erred in confiscating the impugned Goods and ought to have observed that the Goods are not of consumer nature and does not require any specific import licence when the goods are in the form of scrap; 8. The Adjudicating Authority and the Appellate Authority ought to have segregated the consignment, particularly to ascertain how many of them are in serviceable condition a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een accepted, and enhancement on the value is absolutely arbitrary action which deserves to be quashed and set aside; 18. The Adjudicating Authority and the Appellate Authority failed to appreciate that the present import consignment and the imports effected of similar nature at Mumbai and Nhava Sheva involved a time gap of more than 6 months, thus, the enhancing of the value without any clinching basis is absolutely illegal and bad in law; 19. The Adjudicating Authority and the Appellate Authority erred in law as well as in facts without segregating the serviceable Tungsten Carbide Tips and unserviceable, and in the circumstances, loading of the value is absolutely illegal and bad in law; 20. The Adjudicating Authority and the Appellate Authority passed the impugned Order without appreciating the facts that it is the true declaring of the Appellants and its value when supported with the valid invoice ought to have been accepted; 21. The Appellants state that the impugned Order is absolutely illegal, incorrect and unjustified and imposition of such heavy and harsh fine and penalty causes grave injustice and harm to the Appellants, and the same deserves t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lic (Goa), dated 15-11-2001 passed by Commissioner of Customs (Appeals) under Section 128A of the Customs Act, 1962 was not legal and proper and applied to the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as Tribunal ) for correct determination of the following :- (a) Whether after taking into consideration the facts of the case, the order of Commissioner of Customs (Appeals) was correct, legal and proper? (b) Whether the drastic reduction of Redemption Fine and Penalty by the Commissioner of Customs (Appeals) vide his order dated 15-11-2001 was correct and proper and needed to be reviewed? (c) Whether by an Order passed under Section 129B of the Customs Act, 1962, the Tribunal should set aside the said Order and remand the case back to Commissioner of Customs (Appeals) for re-fixation of fine and penalty or pass any other such order as may deem fit? The Hon ble CESTAT upheld the order of the Commissioner (Appeals) in the case of the Importer s appeal and passed order vide Order No. A/1549/WZB/2004/CI, dated 29-9-2004 as follows : .The appellants do not dispute that the goods were used/defective; hence their clearanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the order dated 20-7-2005 of the Hon ble CESTAT had not been brought on the record before the Hon ble CESTAT, when department filed their case before CESTAT, which was in their favour. Now while adjudicating the instant de novo under consideration, he requested to look into the matter afresh while deciding the matter. The Adjudicating Authority went through the records of the case and oral submissions as well as written submissions produced by the Importer at the time of Personal Hearing and observed that while the declared value of the impugned goods was US $ 3.5 per kg i.e. ₹ 153.30 kgs CIF (Rs. 153.30 per kg) under Bill of Entry No. 170, dated 10-4-2000 and the value was loaded from ₹ 143/- per kg to ₹ 210/- per kg based on the import of similar goods at JNPT vide Bill of Entry No. 322717, dated 11-10-1999. While imposing redemption fine the original adjudicating authority has taken 20% of ₹ 210/- i.e. ₹ 42/- per kg as redemption fine which works out to ₹ 1,86,400/-. A penalty of ₹ 15,000/- was also imposed by the original adjudicating authority. The quantity of goods imported vide Bill of Entry No. 322717, dated 11-10-1999 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olicy 1997-2002 against a specific Import Licence and the importers expressed their inability to produce the required specific Import Licence, the imported goods were confiscated under Section 111 of the Customs Act, 1962. 3. A Show Cause Notice dated 17-4-2000 was issued and the importers were called upon to Show Cause and explain as to why the used/defective Tungsten Carbide Tips should be confiscated under Section 111(d) and (m) of the Customs Act, 1962 read with Section 11(5) of the FTDR Act, 1992 and also as to why penalty should not be imposed under Section 112(a) of the Customs Act, 1962 read with Section 11(2) of the FTDR Act, 1992 for having imported the used/defective Tungsten Carbide Tips without a specific import Licence and for having declared a lower value. The importers were also called upon to explain as to why the declared lower value of imported goods should not be enhanced on the basis of contemporaneous imports at other ports from ₹ 153.30 per kg to ₹ 210/- per kg (CIF) and the total value of the impugned goods needs to be enhanced from ₹ 6,80,652/- (CIF) to ₹ 9,32,400/- (CIF) in terms of Rule 5 of the Customs Valuation Rules, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed an order as follows on the following grounds :- .... We find that both the lower authorities have not gone into the details of the case as regards the correct margin of profit that has to be considered for imposition of fine and penalty. Accordingly, without expressing any opinion on the merits of the case, the impugned order is set aside and the matter is remanded to the adjudicating authority to reconsider the issue afresh. Appeal allowed by way of remand. 8. The above CESTAT Order was accepted by Commissioner of Customs, Goa and reasonable opportunity of being heard was given to the importer. 9. The importer, vide letter dated 11-10-2010, forwarded a copy of CESTAT order A/1549/WZB/2004-CI, dated 29-9-2004 stating that as the Hon ble CESTAT has upheld the order of Commissioner (Appeals), and since no Appeal or review has been filed by the Department against the CESTAT order, the CESTAT order had become final. They further requested to drop all proceedings and case be dismissed. 10. However, the new adjudicating fixed a Personal Hearing on 1-3-2012. Shri H.S. Oberoi Shri B. Singh appeared on behalf of the importer for personal hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should have brought Hon ble CESTAT Order dated 6-8-2008 to the notice of CESTAT for rectification of mistake in view of earlier order dated 29-9-2004 as they are both contradictory. 16. The Additional Commissioner in his Order-in-Original No. 3/2011-2012-ADC, dated 26-3-2012 has based his decision on CESTAT s order dated 29-9-2004 and has not gone into the details of the case as regards the margin of profit that has to be considered for imposition of fine and penalty as directed by Hon ble CESTAT in its Order dated 6-8-2008. In view of the foregoing, it is prayed as follows : (a) The Order-in-Original No. 2/2011-12 ADC, dated 26-3-2012 passed by the Additional Commissioner of Customs, Panaji, Goa in respect of M/s. Saidutta Enterprises, Shop No. 397/1, Ejipura Main Road, Vivekanand P.O., Bangalore 47 does not appear to be legal, correct and proper in view of the aforesaid grounds and therefore may be set aside. (b) The Commissioner (Appeals) may pass any such order as may be deemed fit in the facts and circumstances of the case. 2. Respondent contends that : 1. At the very outset this appeal is bad in law because it is seeking your hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordingly accepted the Original CESTAT Order and passed his Order No. 02/2012-ADC/26-3-2012. Therefore this Appeal is bad in law and be dismissed. 3. As is evident from the above narration of facts, the assessee and the Department filed appeals before the Hon ble CESTAT against the order of the Commissioner (Appeals). Though, apparently, both sides were aware of each other s appeal, no effort was made to enlighten the Jt. CDR office, CESTAT Registry nor the Hon ble Bench itself. Resultantly, Hon ble CESTAT happened to pass two different verdicts on the same issue. Both sides were aware of this error, yet neither side attempted to file a Rectification Petition nor approached a higher judicial forum to rectify the defect. Worse, the Adjudicating officer, also despite being aware of the incongruity, chose to adopt an unprofessional approach by simply ignoring one verdict of the Hon ble CESTAT. Such an order was non-existent before his eyes! The matter does not end here. To make matters worse, the order of the Adjudicator is taken up for Review and these Authorities also turn a blind eye to the two conflicting decisions of the Hon ble CESTAT and have simply preferred this present a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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