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M/s K.K. Milk Fresh India Ltd, Shri C.N. Kuchroo, CMD Versus CC New Delhi

2018 (1) TMI 573 - CESTAT NEW DELHI

EPCG Scheme - N/N. 12/2012 CE dated 17.03.2012 - mis-classification of imported goods in order to avail ineligible exemption from payment to additional duty of customs (CVD) in terms of S.No.245 of N/N. 12/2012 CE dated 17.03.2012 - it was also alleged that the goods imported were actually second-hand/old and used machinery and, as such, were not eligible for zero duty EPCG scheme exemption under N/N. 22/2013 CUS dated 18.04.2013 and 16/2015-CUS dated 01.04.2015. - Eligibility of the appella .....

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o, the value should be accordingly reduced. We find such submission as untenable - it is strange that the appellants are pressing the adjudicating authority to re-determine the value only as a consequence of the fact revealed during investigation as the imported goods being old and used - the whole assertion of the appellant, in this regard, is a consequential after-thought to limit the damage which occurred due to deliberate mis-declaration on their part. - Correct classification - availabi .....

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we have no reason to interfere with the same. - There is no merit in the claim of the appellant regarding non-adherence of statutory provisions by the original authority before admitting evidences and report of examination. There is no basis for such claim. - Redemption fine - penalty - Held that: - The redemption fines were in the range of 20% of the value of goods ordered to be confiscated. We are satisfied that the quantum of redemption fines are reasonable and adequate - the penalti .....

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l Order No. 50094-50095/2018 - Dated:- 11-1-2018 - Hon ble Justice ( Dr ) Satish Chandra, President And Hon ble Mr B. Ravichandran, Member ( Technical ) For the Appellant : Shri S.P. Mathew, Ajay Singh, Advocates For the Respondent : Shri R.K. Mishra, AR ORDER Per B. Ravichandran These two appeals are against order dated 19.05.2017 of Additional Director General (Adj.), New Delhi. The main appeal is by the importer, M/s KK Milk Fresh India Limited and the second appeal is by Shri Chand Narain Ku .....

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main appellant. The imported goods were examined; expert opinions taken, further examination of various documents were made. On completion of enquiry. the SCN dated 30.12.2015 was issued to both the appellants proposing confiscation of goods seized, demanding differential customs duty and proposing penalties under various sections of Customs Act, 1962. The notice was made unanswerable to the jurisdictional Commissioner of Customs, incharge of ICD, Tughlakabad/Mundra Port. However, by Notificatio .....

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ble for zero duty EPCG scheme exemption under Notification Nos.22/2013 CUS dated 18.04.2013 and 16/2015-CUS dated 01.04.2015. The imports were in violation of para 5.1 (e) of Foreign Trade Policy 2009-14 and para 5.10 (f) of Foreign Trade Policy of 2015-19 under which the used capital goods are not permitted to be imported under EPCG scheme. 5. The appellants contested the allegations in the SCN and sought cross-examination of the connected persons in the investigation. The cross-examination was .....

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ants contested the finding in the impugned order on the following grounds: a) The impugned order was passed without appreciating the inherent contradiction in the proceedings to confirm duty on the value of new machine while holding the imported goods were, in fact, used and old. b) The original authority should have re-determined the value instead of recording that only assessee officer can deal with correct valuation of the imported goods. This is a mis-conception. The notice was issued to dem .....

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mported by the appellant were examined by the Customs Officers and were allowed clearance without any objection. The expert finding upon inspection of the machines at the factory was legally flawed as there were no independent witnesses during the course of such inspection. e) The machines imported by the appellant were, in fact, used in dairy plant set-up by them. As such, all the goods which are used in such setting-up should have been considered as dairy machinery . The CV duty demand is not .....

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terms of EPCG licenses granted by the DGFT. The exemption granted to the appellant is correctly availed. h) Alternatively, it is submitted that entry at S.No.232 of the above Notification is available as the goods imported were used in the factory of production in terms of the conditions mentioned therein. i) The adjudicating authority failed to strictly adhere to the provisions of Section 138B of the Act before admitting the various evidence for arriving at his finding. 7. The ld AR strongly c .....

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re not new. The ld AR submitted that the impugned order has strictly adhered to the principles of natural justice by offering adequate opportunities to the appellants to present their written and oral submissions. Cross-examination of the witnesses, wherever required, have also been permitted and were conducted. The classification of goods were deliberately made wrongly in order to avail ineligible CV duty exemption. This aspect has been dealt with specifically by the impugned order and there is .....

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ng not new. As such, it is clear that the appellants are not eligible for import under EPCG scheme. There can be no element of doubt on this finding. The appellants repeatedly pleaded that as the goods were second-hand/used and old, the adjudicating authority should have revised the value by rejecting the declared transaction value. It would appear that the appellants are trying to solvage something out of a lost case. When the goods were found not to be eligible for concession under EPCG scheme .....

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judicating authority to re-determine the value only as a consequence of the fact revealed during investigation as the imported goods being old and used. We note that the original authority has no reason to reject the transaction value in terms of Rule 12 of the Valuation Rules. The Revenue did not collect any evidence in this regard. In fact, there is no allegation with reference to correctness or otherwise of the assessable value. The declared value of the appellant was admitted. The said decla .....

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spect which was decided by the original authority is the correct classification and consequently availability of exemption under Notification No.12/2012 CE dated 17.03.2012 (S.No.245) for CV duty. In this connection, we note that the original authority relied on Rule 3(a) of the General Rules of Interpretation of Tariff. He gave preference to more specific description over general description to arrive at correct classification. He has listed-out 10 such items in the table below para 5.4.4.1.2 o .....

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