Custom, Excise & Service Tax Tribunal
Yes vs Represented By : Shri P.V. Sheth, Adv on 5 June, 2013
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad COURT-II Appeal No.C/484/11 Arising out of OIA No.217/2011/CUS/COMMR(A)/KDL, dt.18.07.11 Passed by Commissioner of Customs (Appeals), Kandla For approval and signature : Hon'ble Mr. M.V. Ravindran, Member (Judicial) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Appellant (s) : M/s. Sagar Shally Sales Represented by : Shri P.V. Sheth, Adv Respondent (s) : CC Kandla Represented by : Shri P.N. Sarvaiya, A.R. CORAM : Hon'ble Mr. M.V. Ravindran, Member (Judicial) Date of Hearing/Decision:05.06.13 ORDER No. _____________ /WZB/AHD/2013, dt.05.06.13 Per : Mr. M.V. Ravindran; This appeal is directed against order in appeal No.217/2011/CUS/COMMR(A)/KDL, dt.18.07.11. 2. The relevant facts that arise for consideration are the appellant had filed bill of entry No.151847 dated 28.04.10 at CH, MP&SEZ, Mundra for import of 91.890 MTs of goods totally v/a Rs.18,95,455/- declared as Cast Iron Scrap & Aluminium Scrap ISRI Code Tense (CI-87.2955 MTs and Aluminium Scrap ISRI Code Tense 4.5945 MTs). During first ckeck examination of the cargo under the supervision of Assistant Commissioner, mis-declaration of the goods were noticed in as much as the imported consignment found to contain 22.8435 MTs of Aluminium Scrap ISRI Code Tense v/s Rs.17,38,881/-. The details are as under: Total quantity declared in the Bill of Entry Declared Value / PMT Goods actually imported and presented for examination R/F Rs. Penalty Rs. Total Qty Qty. Mis-declared Value of mis-declared goods determined for assessment (Rs.) Cast Iron Scrap 87.2955 MTs (95%) USD 440 PMT 64.022 MTs (70%) -
-
3,45,000/-
1,25,000/-
27.438 MTs (30%) 22.894 MTs USD 1642 PMT Rs.17,38,881/-
The appellant vide their written request dated 07.05.10 to the adjudicating authority waived show cause notice and personal hearing and requested for adjudication. The matter was concluded by adjudication wherein, apart from ordering for confiscation of 22.89435 of Aluminium Scrap Tense grade found to have been mis-declared in the bill of entry as Cast Iron Scrap under Section 111(m) of the Customs Act, 1962 with option to redeem the goods on payment of fine and imposing penalty under Section 112(a) of the Act ibid, the adjudicating authority has, based on the NIDB import price during the contemporaneous period, also ordered the mis-declared quantity of higher grade Aluminium Scrap Tense to be assessed at USD 1642 PMT. Thereafter, assessment was completed and clearance of the respective quantities of imported goods was allowed on 14.05.10 in two separate categories viz. Cast Iron Scrap and Aluminium Scrap Tense upon payment of applicable duties, fine and penalty. Subsequently, as per the request of the appellant for speaking order, the impugned order came to be issued by the adjudicating authority in the lines of adjudication earlier made.
3. Aggrieved by such an order, the appellant preferred an appeal before the first appellate authority. The first appellate authority did not agree with the contentions of raised by the appellant and has upheld the order in original and rejected the appeal filed by the appellant.
4. Ld. counsel would take me through the impugned order and also the evidences relied upon by them. It is his submission that on first check basis, quantity of excess amount of Aluminium Scrap than the declared quantity was found. It is his submission that the appellant had declared in the bill of entry of quantity of 4.59 MTs on the basis of the report of pre-shipment certificate issued by the authorities. He would submit that they are not disputing the quantity of 22.8435 MTs of Aluminium Scrap found in the consignment as against declared quantity of 4.59 MTs. It is his submission that the redemption fine and the penalty imposed by the lower authorities should be reduced in light of the fact that appellant had acted in a bonafide belief.
5. Ld. A.R. on the other hand would submit that the lower authorities have correctly imposed the redemption fine and the penalty considering the value of the consignment being Rs.17,38,881/- which was found in the consignment. It is his submission that there was a vast difference between finding of 22.8435 MTs of Aluminium Scrap as against declared quantity of 4.59 MTs.
6. I have considered the submissions made at length by both sides and perused the records.
7. In my view, the issue in this case is regarding the excess quantity of Aluminium Scrap found on the first check basis in the consignment as against declared quantity by the assessee. The assessee-appellant has not disputed the presence of excess quantity of Aluminium Scrap in the consignment before both the lower authorities. The dispute which has been raised before the Tribunal by the assessee is only regarding the value adopted of the Aluminium Scrap and also the bonafide belief was that such scrap was not known to be in the containers. At this juncture, I find that the issue can be decided on the basis of the records that there was undisputedly excess quantity of Aluminium Scrap when the said consignment was checked by the authorities. The excess quantity which was found in the consignment is of approximately 17 MTs of Aluminium Scrap as against the declared quantity of 4.59 MTs. In my view, the confiscation of such quantity by the lower authorities under the provisions of Section 111(m) of the Customs Act, 1962 is in accordance with the law. There is no reason for interference in such situation. It is also to be noted that when there is a confiscation under Section 125 of the Customs Act, 1962, the consequences thereto as of imposition of redemption fine and penalties follow. To that extent, the orders of both the lower authorities cannot be faulted with and are upheld.
8. Now coming to the issue of bonafide belief, I find that the claim of the assessee entertaining a bonafide belief, needs little consideration, in as much as the appellant could have been guided by the pre-shipment certificate issued by the NQAQSR, who are authorised to issue said pre-shipment inspection certificate under the provisions of Foreign Trade Policy. I find that the said certificate also indicates that there was a 100% examination of cargo. I find that little leniency is required on the imposition of redemption fine and penalty in such a case.
9. In view of the foregoing, in the peculiar facts and circumstances of this case, I find that the redemption fine imposed on the appellant needs to be reduced to Rs.2,00,000/- and penalty be reduced to Rs.75,000/- to meet the ends of justice.
10. Subject to the modification as indicated hereinabove, the appeal is disposed of.
(Dictated and pronounced in the Court) (M.V. Ravindran) Member (Judicial) .JK 5