TMI Blog2004 (5) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of Notification No. 79/95, dated 31-3-1995 binding themselves to pay on demand, an amount equal to duty leviable together with interest @ 24% p.a. from the date of clearance of the materials. When the appellants produced the relevant documents confirming the fulfilment of export obligation in respect of the subject licence, it was found that as per the Input Output Norms, they were eligible for import of only 750 kgs. of LAM coke for export of 1000 kgs. of Ferro Chrome. The VABAL under reference was issued for a value of Rs. 909182 for importation of the items listed below: (a) Raw Petroleum Coke/LAM Coke (non-sensitive item as per EXIM policy) (b) Carbon electrode pase -do- (c) Chrome Ore lumps -do- (d) Furnace Oil (Sensitive item as per EXIM Policy) 2400 MT (e) Lubricant Oil -do 14 MT 3.The appellants had utilized the total face value of VABAL of US$ 901576.35 for import of 6000 MTs of LAM Coke with unit price declared at the time of import being US$ 150.26 per MT, utilizing the value meant for sensitive items as per flexibility clause in terms of para 49 of EXIM Policy. It appeare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso confiscated the goods valued at Rs. 78,12,635/- under section 111(o) of Customs Act and allowed this to be redeemed on payment of fine of Rs. 12,00,000/-. He also imposed a penalty of Rs. 12,00,000/- on the appellants. 4.Learned Advocate Shri Bagaria had pleaded that the Commissioner of Customs has no power or authority or jurisdiction to amend the import licence or to scale down the extent of import entitlement under the Import Licence. By the order, the Commissioner has reduced the CIF value of the licence from US$ 909182 to US$ 656401 for which he has no jurisdiction. The Commissioner of Customs is the statutory authority under the Customs Act and his powers and jurisdictions are confined to those granted to him under the Customs Act. No power or jurisdiction has been granted to the Commissioner to scale down the import entitlement mentioned in the Import Licences issued by the licensing authorities. These submissions are directly supported by the recent decision of the Supreme Court in the case of Titan Medical Systems Pvt. Ltd. v. CC - 2003 (151) E.L.T. 254 (S.C.) wherein an identical matter in which the Customs authorities had initiated proceedings on the ground that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion dated 31-5-1995, they filed revised application dated 7-6-1995. The revised application was actually filed on 12-6-1995 under JDGFT's receipt dated 12-6-1995. On the basis of the revised application, there was no scope to allege any inflation in the CIF value. The Collector has proceeded on the basis of the original application dated 31-5-1995 taking the value of LAM Coke at US$ 318.78 per MT. In para 16 of the order, the Commissioner had ignored the revised application and rejected the appellant's submission as baseless and incorrect. The Commissioner has totally erred in relying on the letter dated 5-1-1999 from JDGFT, Calcutta, as mentioned in Para 15 of the Commissioner's order. None of the letters referred in the said para were addressed or endorsed to the appellants nor copies thereof were supplied to the appellants. If at all JDGFT, Calcutta was of the view that the import entitlement mentioned in the licence was liable to be reduced or scaled down, the proceedings for this purpose could be initiated only by JDGFT and not by any other authority. The JDGFT has not initiated any proceedings to this effect against the appellants at any point of time. The power to amend the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... price of import or (ii) may please take action as deemed fit by you. In case import has been completed, the same may be treated as excess import". 8.He submitted that since the JDGFT had intimated the Department to take proper action to reduce the CIF value, accordingly the action of demanding the duty on excess import than permissible was taken up by the department, according to the provisions of the Customs Act. The Customs duty is levied under the provisions of the Customs Act and the value of the imports is determined under section 14 of the Customs Act. Therefore, it is within the jurisdiction of the Customs authorities to determine the import value under section 14 and to levy duty on the excess quantity as prescribed under the EXIM Policy. He, therefore, defended the order of the Commissioner. 9.We have carefully considered the submissions made by both sides. We find that the main issue, whether the price mentioned in a licence can be modified by the customs authorities, has been settled by the Supreme Court and other High Courts and Tribunals in various decisions, which were relied upon by the appellants. We find that in the case of Titan Medical Systems Pvt. Ltd. v. C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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