Custom, Excise & Service Tax Tribunal
Office Devices vs Commissioner Of Customs Cochin on 31 August, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: C/20125/2014-SM [Arising out of Order-in-Appeal No. 65/2013 dated 20/09/2013 passed by the Commissioner of Customs, Cochin] For approval and signature: HON'BLE SHRI S.S GARG, JUDICIAL MEMBER 1 Whether Press Reporters 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 the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 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 Office Devices A/201, Amrut Sagari, S.V. Road, Borivli (W) Mumbai 400 092 Appellant(s) Versus Commissioner of Customs Cochin Custom House Cochin 682 009 Kerala Respondent(s)
Appearance:
Shri P.A Augustian, Advocate Faizel Chambers, Pullepady Cross Road, Cochin - 682 018. Kerala For the Appellant Shri J. Harish, AR For the Respondent Date of Hearing: 31/08/2016 Date of Decision: 31/08/2016 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 20708 / 2016 Per: S.S GARG The present appeal is directed against the order passed by the Commissioner (Appeals) dated 20.09.2013 vide which the Commissioner (Appeals) has rejected the appeal of the appellant and upheld the Order-in-Original. Briefly the facts of the present case are that the appellant imported 66 numbers of used P4 computer system with 17" CRT monitors, 643 numbers of used 17" CRT monitors, 75 numbers of used 15" LCD monitors, 85 numbers of used 17" LCD monitors and 77 numbers of used 19" LCD monitors. On arrival of the goods in Customs House, Cochin, the appellant filed a Bill of Entry dated 05.04.2010. The examination of the goods were carried out to find out the market value of the goods and also find out whether it form e-waste and independent engineer appointed by respondent valued the goods as USD 16,342.50 against declared value of USD 14,752.50. The said valuation was arrived by considering the local value of the goods in India and not the value of such goods for export into India from the country of its export. The appellant accepted the said value. The CHA appeared for the appellant before the authority prayed that a lenient view should be taken in respect of redemption fine and penalty. The Additional Commissioner vide Order-in-Original dated 07.05.2010 confiscated the imported goods under Section 111(d) of the Customs Act, 1962 read with Section 3(3) of Foreign Trade (D&R) Act, 1992. The appellant was allowed to redeem the goods on payment of redemption fine of Rs. 2,00,000/- (Rupees Two Lakhs only) and on payment of duty at the rate applicable and penalty of Rs. 75,000/- (Rupees Seventy Five Thousand only) was also imposed. The appellant paid the duty, fine and penalty. Aggrieved by the said order, the appellant filed appeal before the Commissioner (Appeals) who rejected the appellants appeal and upheld the Order-in-Original.
2. Heard both the parties and perused the records.
3. Learned counsel for the appellant submitted that in this case the prayer is only confession to redemption fine and the penalty which is exorbitant. He further submitted that he is not questioning the confiscation but he is only praying that a lenient view should be taken as far as redemption fine and penalty is concerned. He also submitted that normally redemption fine should not exceed 10% of the assessable value and penalty should not be more than 5%. But in this case the Additional Commissioner has imposed a very heavy redemption fine and also penalty.
4. On the other hand the learned AR submitted that the redemption fine and the penalties imposed in the present case are not excess keeping in view the past conduct of the appellant. He further submitted that in the Order-in-Original, the learned Additional Commissioner has observed in para 8 that the importer is a habitual offender having imported similar items on twenty eight occasions in the past without obtaining the license to meet the restricted items. He further submitted that the goods imported are rightly confiscated under Section 111(d) of the Customs Act 1962 read with Section 3(3) of Foreign Trade (Development and Regulation) Act, 1992. He also submitted that the appellant had a mens rea in importing repeatedly the same thing knowing well that it is not permitted under the law. Therefore, the redemption fine and the penalty should be upheld.
5. After hearing the submissions of both the parties and perusal of the material on record, I find that keeping in view the facts and circumstances and the conduct of the appellant, I am of the considered opinion that there is nothing wrong in imposing the redemption fine of Rs. 2,00,000/- (Rupees Two Lakhs only) and a penalty of Rs. 75,000/- (Rupees Seventy Five Thousand only) in the present case. Therefore, I upheld the impugned order and dismiss the appeal of the appellant.
(Order pronounced in open court) (S.S GARG) JUDICIAL MEMBER iss