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2016 (5) TMI 555 - CESTAT KOLKATA

2016 (5) TMI 555 - CESTAT KOLKATA - TMI - Import of old & used photocopiers - Confiscation in lieu of redemption fine and imposition of penalty - Enhancement of declared value at the time of assessment - Held that:- Revenue has correctly pointed out that multifunctional machines have copying facility are classifiable under CTH 84433100. In view of the observations from the appellant's own case decided by Punjab & Haryana High Court reported as BE Office Automation Products Ltd Vs CCE Gurgaon [20 .....

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v. For the Respondent : Shri S. Nath, AC (AR) ORDER PER SHRI H.K.THAKUR This appeal has been filed by appellant against OIO No. KOL/CUS/PORT/77/07 dt 06/07/2007 passed by Commissioner of Customs (Port), Kolkata as Adjudicating authority. Under this OIO dt 06/07/2007 Adjudicating authority has confiscated old & used photocopiers imported by the appellant and has given an option for redeeming the same on payment of ₹ 8 lakh as redemption fine. A penalty of ₹ 3 lakh has also been im .....

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e argued that the basis of enhancing the value is not justified. 2.1 On the issue of confiscation of imported goods it was agued by the Learned Advocate that as per the Chartered Engineer s Certificate dt 30/4/2014 now produced by the appellant the second had equipment imported by the appellant was Digital Multifunctional Copier Machines and not simple photocopiers. That the model numbers described in the Bills of entry are the same which have been certified by the Chartered Engineer M/s C.K Sha .....

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then also the quantum of redemption fine & penalty is very high and the range of redemption fine & penalty in such imports should be 10% & 5% respectively of the value assessed by the departments. He relied upon the following case laws in support of his argument where in similar imports redemption fine & penalty have been restricted to 10% & 5% respectively :- (i) CC Chennai Vs Rasi Offset Printers [2014 (313) ELT 234 (Tri. Chennai.)]. (ii) Bhavani Enterprises Vs CC Vishakap .....

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under CTH 8443 3100 which was not the classification claimed by the appellant. That neither the issue of valuation nor the nature of second hand copiers & licensing restrictions were agitated by the appellant before the Adjudicating authority. So far as quantum of redemption fine & penalty are concerned Learned AR argued that appellant is a repeated offender & brought old & used photocopies throughout India & was required to be visited with higher penalty & fine. Learned .....

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applied only to ordinary photocopies. (C) That otherwise also the quantum of redemption fine & penalty imposed is very high & should have been restricted to 10% & 5% respectively as has been held by courts in the other imports of the same appellant. 5. So for as arguments at Para- 4 (a) & (b) above are concerned it has been correctly pointed out by the Learned AR that multifunctional machines have copying facility are classifiable under CTH 84433100. Appellant has claimed and cla .....

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o entertain these fresh grounds at this appellate stage when the same issues were not agitated before the lower Adjudicating authority at all. 6. So for as leniency in imposing quantum of redemption fine & penalty is concerned appellant also sought leniency as per Para-14 of the OIO dt 6/7/2007 during adjudication but adjudicating authority imposed a redemption fine of nearly 30% of enhanced value & a penalty equivalent to 10% of the enhanced value. It is observed from the appellant s ow .....

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that there have been instances, where the Tribunal had considerably reduced the penalty. 18. Though it is true that no standard formula is possible but when facts of the case in hand are taken for evaluation, it is found that the Tribunal had side-tracked the issue only by taking into account the fact that the appellant had already got the goods released on payment of redemption fine, whereas it remains a fact that mere payment of redemption fine in no way dwarfs the right of the appellant to ch .....

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