Customs, Excise and Gold Tribunal - Tamil Nadu
Commissioner Of Customs vs Aradhi Associates on 6 December, 2000
Equivalent citations: 2001(129)ELT120(TRI-CHENNAI)
ORDER S.S. Sekhon, Member (T)
1. These appeals are against the orders of Additional Commissioner of Customs apprising two consignments of 'Brass Ash Dross' and did not accept the loading of the values as proposed based on the Metal Bulletin Editorial Office, London, as he found that the department was not in a position to show any document regarding the deliberate mis-declaration of value of the goods or able to produce any evidence regarding illegal foreign exchange for excess payment. Therefore, he did not propose any action for the alleged misdeclaration of the goods and dropped the proceedings for mis-declaration and penal action under Section 112 of the Customs Act.
2. The Central Board of Excise & Customs vide their orders No. 30E, 16E and 14E all dated 17-01-1991 observed after going through the records of the case, that the party in their reply to the show-cause notice had submitted that the Metal Bulletin price of UK adopted for arriving at the assessable value represented the current market value in UK and not the transaction price as contemplated in the Valuation Rules and therefore, held that the Collector in his adjudication has rejected the invoice price and the revised unit price by US $ 545 per MT FOB and directed that PD assessment should be finalised accordingly. Therefore, the Collector should have confiscated the goods under Section 111(m) of the Act and then allowed the same to be redeemed on payment of suitable fine and penalty.
3. The present appeals have been filed on these grounds that the charge of mis-declaration of value being stood established, the Collector should have confiscated the goods under Section 111(m) of the Customs Act, 1962 and then allowed the same to be redeemed on payment of suitable fine and penalty and since the Collector has failed to impose penalty, the order impugned may be set aside and the CEGAT should determine the points and impose suitable fine and penalty on the importers.
4. We have heard learned SDR for the department, who reiterated the grounds of appeal. None appeared for the respondents. We proceed to decide the matter after hearing learned SDR.
5. We have carefully considered the submissions and records of the case and find -
(a) The assessments were provisional and have been finalised by determining the values at US $ 545 per MT, after considering the detailed price list of like goods of Brass Dross/Ash cleared through Bombay from the computer prints obtained by the learned Additional Commissioner, who found that price range from 455 to 600 US $ based on the copper content of the consignment. He found that as per the Metal Bulletin prices of brass scraps were not comparable to the prices of Brass Ash/Dross. Therefore, on the basis of valuing Brass Ash/Dross on the price of Brass scrap would not be correct. He also found that the importers have also declared the copper content for the subject brass dross as 50 to 55% and on test, the copper content came to 58% and therefore, he took the average of 50 to 53% as declared by the importers to be correct and thereafter he found the lowest price as per the contract and determined the value.
(b) We do not find any reasons as arrived at in the grounds of appeal as to why in the case of provisional assessment for a declared value, which is arrived at as per the valuation rules for the goods, the goods should be liable for confiscation; since the assessments were provisional, they should be considered for provisional for all purposes i.e. chemical test and or valuation and if the valuation are being determined by the Customs authorities by applying the Valuation Rules, it is not necessary that the values declared by the importers are mis-declaration, since the valuations have been enhanced not on any evidence of illegal remittance or of any remittance over and above the contracted invoice price. As the Collector has found that there is no material evidence, the values declared have been enhanced based on certain formula under Rule 11 applied for the determination of value. If the values have not acceptable to Customs and a different higher value is determined as per Valuation Rules, ipso facto is not a case of mis-declaration or intent to evade or avoid Customs duty and this will not constitute to our mind liability for confiscation under Section 111(m) of the Customs Act.
6. We also notice that the Hon'ble Supreme Court in the case of Ak-bar Badruddin jiwani v. CC as reported in 1990 (47) E.L.T. 161 has held that the quantum of penalty and find in lieu of confiscation would be harsh or excessive and have to be considered unreasonable, if the bona fides of the appellants are not considered and metis rea has not been established. In the present case, we find that no metis rea to declare the under valuation has been established. Following the above decision of the Supreme Court, we cannot find any reason for imposing any redemption fine or penalty on the importers in the facts and circumstances of the case.
7. In view of our above findings, we would reject the appeals.