TMI Blog2021 (8) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... ion from the Tribunal when the appeal was pending before the Tribunal on the date of auction. It is a settled law that once the goods are seized or confiscated and the proceedings against the same are pending before the authority / Court then the only option available to the department is to obtain necessary permission from the court before whom the proceedings are pending and also to issue notice to the assessee from whose possession goods have been seized before auctioning the goods. This Tribunal has inherent power under Rule 41 of CESTAT (Procedural) Rules, 1982 to pass any order or direction to secure the ends of justice and that power has also been upheld by various decisions. Therefore, in view of the settled position of law, the impugned order is not sustainable in law and we set aside the same by allowing the appeal of the appellant and direct the department to pay the assessed value along with interest as prescribed under law till the date of refund - Appeal disposed off. - Customs Appeal No. 373 of 2006 - Final Order No. 20710 /2021 - Dated:- 24-8-2021 - SHRI S.S GARG, JUDICIAL MEMBER AND SHRI P. ANJANI KUMAR, TECHNICAL MEMBER For the Appellant : Mr. Rag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.1 The appellant vide communications dated 14.06.1993, 27.06.1993 and 30.06.1993 requested the Assistant Commissioner to release the goods immediately. However, no action in the matter was taken. Thereafter, two show-cause notices dated 19.5.1993 were issued to the appellant by the Commissioner of Customs, Bangalore proposing to reject the declared invoice value on the ground of mis-declaration. The appellant filed a common reply on 30.07.1993 in which the allegations in the show- cause notices were denied. The appellant thereafter submitted various documents received from the supplier in USA along with a communication informing that the supplier had extended the discount up to 60% for KOMATSU parts. The Collector of Customs, Bengaluru vide common order dated 4.10.1993 rejected the transaction value of the imported goods and thereby refixed the transaction value by enhancing the same by 50%. The Collector also ordered for confiscation of the imported goods and also imposed penalty of ₹ 50,000/- on the appellant. Aggrieved by the order of the Collector, the appellant filed an appeal before the Appellate Tribunal. During the pendency of the appeal, the respondent auctioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a customs area are in the custody of the customs officer until they are cleared for home consumption. Further as per provisions of Section 47 of the Customs Act, 1962 which provides for payment of duty only on assessment of goods by the proper officer whereas in the present case, the goods were not assessed and hence, the question of going into the issue of under valuation is uncalled for as the goods being not available for assessment and home clearance, the question of assessment does not arise. He further submitted that even if the duty is payable on the imported goods, the same should be adjusted from the value of the goods auctioned. In the present case, the department having determined the value of the imported goods at ₹ 28,26,001/- without including the custom duty payable on it and having auctioned the goods without the knowledge of the appellant should refund the value as determined. He further submitted that merely because the department has auctioned the goods for lesser price that by itself will not disentitle the appellant from claiming refund of value of the goods. He also submitted that in normal circumstances where the goods are available for home clearance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndervaluation is highly unsustainable in law especially when the certificate of origin was subsequently produced and was accepted by the Tribunal while remanding the appeal back to the adjudicating authority to consider the certificate of origin. He further submitted that mere allegation of undervaluation would not be sufficient to prove the case as it is well settled law that the burden is cast on the department to prove its case and mere allegation in the show-cause notice would not be sufficient to prove undervaluation. He further submitted that the goods imported by the appellant are partly manufactured at USA and partly at Japan and the goods were supplied only from USA by M/s. Heldean Inc., USA and not from Japan which is further supported by the letter dated 15.9.1992 addressed from M/s. Roland Machinery Co., who is the authorised distributor of Komatsu Dresser Co., USA which reveal that the goods were supplied from USA. He further submitted that the learned Commissioner erred in rejecting the certificate of origin without verifying personally the goods and also without giving credence to the certificate of origin which has not been proved to be false. Further, adopting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not liable to pay any amount of duty, interest and penalty and on the other hand, entitled to get back the mahazar value as determined by the department of the original goods. In this regard, he has relied upon the following decisions: CC, Bangalore vs. Md. Yaseen: 2010 (255) ELT 50 (Kar.) Ship Impex vs. UOI: 2001 (128) ELT 54 (Del.) Northern Plastics vs. Commissioner: 1999 (113) ELT 3 (SC) Kailash Ribbon Factory Ltd. vs. CC CE, New Delhi: 2002 (13) ELT 60 (Del.) CC, Amruthsar vs. Harinder Singh: 2008 (221) ELT 203 (P H) affirmed by the Supreme Court in Commissioner vs. Harinder Singh: 2008 (227) ELT A31 (SC) Sufal Dutta vs. CC (Prev.), WB: 2004 (167) ELT 283 (Tri.- Kolkata) CC, Allahabad vs. Pidilite Industries Ltd.: 2007 (212) ELT 38 (Tri. Del.) affirmed by the Allahabad High Court in CC, Uttarpradesh Uttaranchal vs. Pidilite Industries Ltd.: 2014 (309) ELT 598 (All.) Rang Birajgi Sarees (P) Ltd. vs. ADC: 2011 (265) ELT 26 (Cal.) Bhogilal Mehta vs. Union of India: 2004 (164) ELT 239 (Cal.) Commissioner vs. Ratan Kumar Saha: 2005 (189) ELT 11 (Cal.) 5.2 Learned counsel also submitted that this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties and perusal of the material on record and the various decisions relied upon by both the parties, we find that in the present case, since the goods have been auctioned during the pendency of the appeal before the Tribunal and the said seized goods are not available for redemption, therefore, at this stage, the question of going into the issue of undervaluation is not required as the goods being not available for assessment and home clearance, hence the question of assessment does not arise. Precisely, for this reason, the learned counsel for the appellant has even though made submissions on undervaluation but did not press the issue of undervaluation and has only confined to the restitution of value of the seized goods along with interest. This is the third round of litigation before the Tribunal and in the first round of litigation, the Tribunal vide Final Order No.129/2002 dated 31.1.2002 had categorically observed the contention of the appellant with regard to the goods of mixed origin which should be verified by the certificate of country of origin submitted by the appellant and remanded the matter back to the original authority to decide the issue afresh. Further, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te court where the matter was sub judice. Thus, the Department has committed a serious blunder by auctioning the goods which was a subject matter of an appeal and without prior permission of the appellate court, is not permissible to sale the same, as per the case laws and the circulars which have already been discussed by the appellate authority in their orders. 7.1 Further, in the case of Northern Plastics Ltd. vs. CC CE: 1999 (113) ELT 3 (SC) cited supra, the Hon ble Supreme Court observed that the department cannot be permitted to take advantage of its own wrong especially when they have auctioned the goods during the pendency of the proceedings before the apex court. Consequently, directed the department to refund the value of the goods. 7.2 Further, we find that this Tribunal has inherent power under Rule 41 of CESTAT (Procedural) Rules, 1982 to pass any order or direction to secure the ends of justice and that power has also been upheld by various decisions cited supra by the appellant. Therefore, in view of the settled position of law as observed above, we are of the considered view that the impugned order is not sustainable in law and we set aside the same by a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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