TMI Blog2019 (5) TMI 979X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of Custom Act, 1962 or under any other law for time being in force, hence clause d to Section 111 is not applicable. Similarly the goods were assessed to duty by the Custom Authority and cleared on payment of duty assessed. There cannot be misdeclaration when there is no dispute about the that entries made in the Bill of Entry were on the basis of an invoice of foreign supplier without holding that the invoice was forged or manipulated. Since it is not so clause m of Section 111 will not be applicable. Similarly when the appellants have followed the practice in manner of making the declarations in Import Manifest, and existence of such practice is admitted by the Commissioner JNCH, Nhava Sheva, in his Public Notice, case of appellants cannot be covered under clause f of Section 111. In our view the order of Commissioner holding goods liable u/s 111 (d) (f) and (m) is bad in law and cannot be sustained. Since we have held that imported dry containers are not liable for confiscation u/s 111, penalties u/s 112 (a) and (b) (iii) cannot be sustained and hence they are set aside. Thus, while upholding the demand of duty and interest against Appellant 1, we set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Merchant Marine Pvt (India) Limited are liable to pay differential duty of ₹ 3,90,461/- (₹ 72,43,903/- - ₹ 68,53,440/-) (Rupees Three Lacs Ninety Thousand Four Hundred Sixty One only) along with interest thereon. 4.1.2 All the 157 dry containers totally valued at ₹ 2,28,54,423/- (Rupees Two Crore Twenty Eight Lakhs Fifty Four Thousand Four Hundred and Twenty Three only) are confiscated under section 111(d), 111(f) 111 (m) of the Customs Act, 1962. However an option is given to M/s Hyundai Merchant Pvt (India) Limited to redeem these 157 dry containers on payment of redemption fine of ₹ 22,00,000/- (Rupees Twenty Two Lakhs only) under section 125 of the Customs Act, 1962. 4.1.3 Penalty of ₹ 6,00,000/- (Rupees Six Lakhs Only) is imposed on M/s Jindal Waterways Limited under Section 112(a) and (b)(iii) of the Customs Act, 1962. 4.1.4 Penalty of ₹ 6,00,000/- (Rupees Six Lakhs Only) is imposed on M/s Hyundai Merchant Marine (India) Limited under Section 112 (a) and (b)(iii) of the Customs Act, 1962. 1.2 Appeal No C/626 482/2010 are directed against the Order in original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ees Ten Lakhs only) under section 125 of the Customs Act, 1962. 4.1.3 Penalty of ₹ 2,50,000/- (Rupees Two Lakhs Fifty Thousand Only) is imposed on M/s Jindal Waterways Limited under Section 112(a) and (b)(iii) of the Customs Act, 1962. 4.1.4 Penalty of ₹ 2,50,000/- (Rupees Two Lakhs Fifty Thousand Only) is imposed on M/s Hyundai Merchant Marine (India) Limited under Section 112 (a) and (b)(iii) of the Customs Act, 1962. 1.3 Since the issue involved in all the four appeals are identical they are taken up simultaneously. 2.1 M/s Jindal Waterways Limited (Appellant 1) Steel Dry Cargo Containers from China. M/s Hyundai Merchant Marine India Private Limited (Appellant 2) was engaged as steamer agent for the import of the said containers. As these containers were being imported empty, they were given on way lease to the steamer agent. The Steamer agent uses the empty containers for transporting cargo of others. The lease agreement between the Appellant 1 and Appellant 2 indicated replacement values of the said containers, which was higher than the value declared by the importer, on the basis of invoice of f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting the transaction value. iv. Since the demand made on the basis of rejection of transaction value cannot sustain, demand of interest to will fail. v. Goods are not liable for confiscation by invoking the provisions of Section 111 (d), (f) and (m). Since the goods are not liable for confiscation the redemption fine imposed cannot be sustained. vi. Since the goods are not liable for confiscation, penalties imposed under Section 112 (a) and (b)(iii) cannot be sustained. 4.1 We have heard Shri Brijesh Pathak, Advocate for Appellant 2 and Shri Ramesh Kumar Assistant Commissioner, Authorized representative for the revenue. None appeared on the behalf of Appellant 1. 4.2 Arguing for the appellant 2 learned Counsel submitted that: i. Appellant 1 is the importer and owner of the dry containers and any duty short paid along with interest needs to be demanded from them only. ii. In relation to the said dry containers they have not done anything or omitted to do anything which would have made the said containers liable for confiscation. They are in no way involved in the alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ysis it is evident that the principles of valuation incorporated in Section 14(1)(a) of the Act therein show that : (a) the price is a deemed price; (b) at which such or like goods are ordinarily sold or offered for sale; (c) for delivery at the time and the place of importation or exportation; (d) in the course of international trade; (e) where the seller and the buyer have no interest in the business of each other and (f) the price is the sole consideration for the sale or offer for sale. 9. This Section clearly indicates that it is not the price stated in the CIF contract which alone is to be accepted as being the value of such goods for the purpose of Section 14 of the Act. The said Section requires determination of the value of the imported goods. The appellants are right in contending that this is a deeming provision. The value of such goods is to be deemed to be the price at which such goods are ordinarily sold, or offered for sale, for delivery at the time and place of importation in the course of international trade, where the seller and the buyer h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainers are duly manifested and they shall be supported by requisite documents such as B/L, Invoice, etc. Applications for additional entry in the manifest for cases, not already manifested in IGM, will be considered on production of supporting evidence such as one way lease agreement, Bill of Lading etc. After scrutiny of the application by the Competent Authority, such additional entry in the respective IGM will be considered on merits. The importer will have to file the Bill of Entry for such Importation of containers and the clearance will be allowed after assessment and payment of duty as per normal procedure for imported goods. 3. Importer/Shipping Line shall ensure that Empty containers, after de-stuffing of cargo shall remain in concerned CFS, till out of charge of such container is given by Customs. 4. The cases of containers imported for domestic purpose in the past and pending clearance under the temporary importation procedure shall be regularized by the concerned Shipping Lines, by seeking amendment of IGM and clearance on payment of duty after the amendment as per normal procedure for imported goods. Para 1 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he declarations in Import Manifest, and existence of such practice is admitted by the Commissioner JNCH, Nhava Sheva, in his Public Notice, case of appellants cannot be covered under clause f of Section 111. In our view the order of Commissioner holding goods liable under Section 111 (d) (f) and (m) is bad in law and cannot be sustained. 5.7 Since we have held that imported dry containers are not liable for confiscation under Section 111, penalties under Section 112 (a) and (b) (iii) cannot be sustained and hence they are set aside. 5.8 In result while upholding the demand of duty and interest against Appellant 1, we set aside the order confiscating the goods, fine imposed and penalties imposed. 6.1 Appeals filed by Appellant 1 i.e. Appeal No C/455/2010 and C/626/2010 are partly allowed to the extent of setting aside of the order of confiscation of the goods and imposition of redemption fine and penalties. Demand of duty along with interest in respect of imported empty containers is upheld. 6.2 Appeals filed by Appellant 2 i.e. Appeal No C/481/2010 and C/482/2010 are allowed to the extent of setting aside of penaltie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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