Custom, Excise & Service Tax Tribunal
Kolkata(Port) vs Atul Commodities Pvt Ltd on 12 May, 2023
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
KOLKATA
REGIONAL BENCH - COURT NO.1
Customs Miscellaneous Application (COD) No.75321 of 2014
Customs Stay Petition No.75320 of 2014
&
Customs Appeal No.75219 of 2014
(Arising out of Order-in-Appeal No.173-185/Cus(Apprg.)/Kol(P)/2013 dated
07.10.2013 passed by Commissioner of Customs (Appeals), Kolkata)
Commissioner of Customs (Port), Kolkata
15/1, Strand Road, Kolkata-700001
Appellant
VERSUS
M/s Atul Commodities Pvt. Ltd.
8, Bentick Street, Kolkata-700001
Respondent
APPERANCE :
Shri M.P.Toppo, Authorized Representative for the Appellant Shri Shovendu Banerjee, Advocate for the Respondent CORAM:
HON'BLE MR.ASHOK JINDAL, MEMBER (JUDICIAL) HON'BLE MR.RAJEEV TANDON, MEMBER (TECHNICAL) Misc. Order No.75151-75152/2023 & Final Order No.75408/2023 DATE OF HEARING : 12.05.2023 DATE OF DECISION : 12.05.2023 Per Ashok Jindal :
The reason for delay in filing the appeal before the Tribunal is explained satisfactorily. Accordingly, we condone the delay in filing the appeal before the Tribunal. The application for condonation of delay is allowed.
2. The Revenue has also filed an application for staying the operation of Order-in-Appeal No.173-185/Cus(Apprg.)/Kol(P)/2013 2 Cus.Appeal No.75219/14 dated 07.10.2013 passed by Commissioner of Customs (Appeals), Kolkata.
3. Prima-facie, on-going through the impugned order, we find that the order of the ld. Commissioner (Appeals) is not, ex-facie, illegal or without jurisdiction. The Revenue's Stay Petition being filed in a routine and mechanical manner and devoid of merit, is rejected.
4. At this stage, both the parties have agreed to decide the appeal finally today itself. Accordingly, with the consent of both sides, the appeal is taken up for final disposal.
5. The Revenue is in appeal against the impugned order wherein the ld.Commissioner (Appeal) held that there is no license required for import of old and used Digital Multifunction Printer before 28.02.2013 and the value cannot be enhanced on the basis of Chartered Engineer's Certificate without any corroborative evidence.
6. The facts of the case are that the respondent imported old and used Digital Multifunction Printer and filed various bills of entry. The goods of the respondent were examined in the presence of Customs Officials, Chartered Engineer and representative of the appellant and found to be old and used having residual life of more than six years and the said machines were found to be minor reconditioning and values were assessed on the enhanced value as compared to declared value. The said value was arrived by Chartered Engineer after inspection and production of market value recommendations based on several aspects like useful life of machines/Make & Model/technology/country of origin/physical condition/comparison with similar goods imported in past/internet information/reconditioning etc.. 3 Cus.Appeal No.75219/14 It was held that the said consignment being second hand was restricted item in terms of Para 2.17 of Foreign Trade Policy, 2009 - 2014 and Para 2.33 & 2.33A of HBP and could be imported against valid license. On appeal, the ld.Commissioner (Appeals) held that for the impugned goods, no license is required in terms of restrictions made under Para 2.17 of the Foreign Trade Policy 2009-2014 and Para 2.33 and 2.33A of HB Procedure. It was also held that the value can not be enhanced based on Chartered Engineer's Valuation. Against the said order, the Revenue is in appeal before us.
7. Heard both sides and perused the records.
8. We find that the issue has already been settled by this Tribunal in the case of Bhawani Enterprises reported in 2017 (353) ELT 234 (Tri.- Kolkata), wherein the Tribunal has held as under :
"3. After hearing the ld. Counsel for the Department and on perusal of the case record, we find, that on the licensing aspect, the Commissioner (Appeals) has followed the order of Hon'ble Madras High Court in the Writ Petition Nos. 890 to 894, 949 to 961 and 1170 to 1188 of 2012, dated 14-3-2013 [2014 (302) E.L.T. 212 (Mad.)] wherein it was held that upto 28-2-2013, there was no restriction on import of subject goods. Enquiring from the office of the DGFT, it was informed that in consultation with Law Ministry, they had decided not to file SLP against the said judgment of the Madras High Court. As for the question of confiscation of the goods for mis-declaration of value, we find that the appellants had declared the goods correctly in description/quantity/value and classified them under proper chapter heading of Customs Tariff. The value of the goods was enhanced on the basis of the Chartered Engineer's certificate which was accepted by both the parties. We 4 Cus.Appeal No.75219/14 agree with Commissioner (Appeal)'s findings that (i) mere enhancement of value on the basis of C.E. certificate cannot be a ground for treating declared value as mis-declared unless there is other corroborative evidence. (ii) except enhancement on the basis of C.E.'s Certificate, there is no other material on record to inform that declared value was mis-declared."
As in the case of Bhawani Enterprises (supra) for earlier import of identical goods, it was held that there was no restriction of import of the subject goods, we hold that no specific license is required for import of the impugned goods. We further find that for enhancement of value, the Chartered Engineer's Certificate cannot be relied upon unless there is corroborative evidence, we hold so.
9. In view of this, as the issue is no more res integra, therefore, we do not find any infirmity in the impugned order, accordingly, the same is upheld.
10. In the result, the appeal filed by the Revenue is dismissed.
(Dictated and pronounced in the open court.) Sd/-
(Ashok Jindal) Member (Judicial) Sd/-
(Rajeev Tandon)
mm Member (Technical)