Customs, Excise and Gold Tribunal - Mumbai
Picasso Overseas vs Cce (Adjudication) on 19 April, 2005
Equivalent citations: 2005(191)ELT1069(TRI-MUMBAI)
ORDER Moheb Ali M., Member (T)
1. Briefly the facts are that the appellant imported a consignment said to be of Hard Ring Ferrite Magnets and sought clearance under Bills of Entry no. 115277. Anti dumping duty is leviable on Hard Ring Ferrite Magnets under Notification no. 103/99 Cus. Dated. The consignment was weighed and was found to be of 41 MTs as against the declared wt of 30.25 MT's. The goods thereupon were seized. The Chemical Examiner who examined the goods opined that the seized goods do not consist of `Magnets'. Duty including anti dumping duty was however paid as if the consignment was of Hard Ring Ferrite Magnets. The officers thereupon took up investigation of the past imports made by the same importer. Such investigation revealed that in the past the importer cleared 7 consignments. An attempt was made to ascertain the actual weight of those consignments. The assumption is that if a person has committed an irregularity and is caught he must have done it in the past as well. In the impugned order, the Commissioner ascertained the actual net weight of the past seven consignments in the following manner.
(a) The gross weight declared in the Bills of Entry was compared with the gross weight declared by the various transporters who transported the goods after clearance. It was found to be more than the declared quantity in the 7 Bills of Entry. From the gross weight the net weight of each of the seven consignments was calculated/ascertained relying on the documents mentioned hereunder :
A. Test memo dated 26/05/2000 issued by the Dy. Chief Chemist, Mumbai Customs, Mumbai in respect of samples of Hard Ring Ferrite Magnets (under seizure) imported by M/s Picasso Overseas.
B. Test memo dated 26/05/2000 issued by the Dy. Chief Chemist, Mumbai Customs, Mumbai in respect of samples drawn from similar consignments imported by M/s Good will Electronics, Delhi.
C. Examination report in respect of Hard Ring Ferrite Magnets made by the Customs dated 25/04/2000 and 25/05/2000.
D. Weight list of the Hard Ring Ferrite Magnets manufactured by M/s Super Electronics Co. Ltd., Malaysia.
E. Weight list of the Hard Ring Ferrite Magnets manufactured by M/s Permanent Magnets LTd., Mumbai.
The item wise net weight based on above referred documents was ascertained as follows :-
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Sr. No. Size Documents considered mentioned Wt.
above for consideration of the Considered
net weight per pc.
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A B C D E
---------------------------------------------------------------- 1 36x18x8 28.10 28 29.23 30.5 28 2 45x22x8 46.47 48.4 48 3 45x22x9 52.28 54.5 52 4 53x24x9 78.9 75 5 53x24x10 87.7 83 6 53x24x11 93.10 93020 92 92.20 96.5 92 7 72x38x15 232.40 234.67 24.5 232 8 90x50x15 317.20 316.66 316 9 90x36x17 400.30 441.60 408 452.00 400 10 100x60x20 501.00 482.53 501 11 120x60x20 841.90 834.30 842 841.28 834 12 156x56x20 1300
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As regards size 156x56x20 (Sr.no.12 above), the actual net weight was not available in the above referred documents at (A) to (E). Therefore, the net weight was arrived on pro-rata basis and considered as 1300 gms per piece. The net weight of similar size as per document (D) i.e weight list of the HRFM manufactured by M/s Super Electronics was as below.
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S.No. Size Weight taken
in gms per piece
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1 155x80x20 1328.65
2 156x57x17.5 1391.14
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2. It was eventually concluded that the importer mis-declared the net weight of the consignments cleared through the 7 Bills of Entry and in the one under clearance. Anti dumping duty not paid on the differential quantity cleared under the previous seven Bills of Entry was demanded in the show cause notice, penal provisions were also invoked.
3. In the impugned order, the Commissioner demanded anti dumping duty on 44,85,000 pieces of Hard Ring Ferrite Magnets, on which anti dumping duty of Rs.37,43,477/- was not paid/recovered cleared under the seven Bills of Entry mentioned in the show cause notice, held the said pcs were liable to confiscation confiscated them and imposed a person penalty equal to the differential duty (Rs.37,43,477/-) under Section 114A of the Customs Act.
4. Heard both sides.
5. What was sought to be cleared under Bills of Entry no. 115277 dt. 22.3.2000 was Hard Ring Ferrite Magnets. The test report indicated that what were sought to be cleared under the said Bills of Entry were not magnets. The implication is that only Hard Ring Ferrite Magnets attract anti-dumping duty according to the anti-dumping notification. But the importer paid anti dumping duty while seeking clearance of the goods covered under the said Bills of Entry. The Commissioner in the impugned order therefore drops the charges in respect of 4,40,000 pcs of Hard Ring Ferrite Magnets imported under the said Bill of entry with consequential relief if any. He however held that in the previous seven consignments Hard Ring Ferrite Magnets were imported and since no test was conducted to ascertain whether those consignments were really HRFMs, they should be construed to be so because the importer had declared them to be so. Chemical analysis of goods imported under Bill of Entry 115277 showed that they were not HRFMs. It is, therefore, important to see whether the goods cleared under the previous 7 Bills of Entry were Hard Ring Ferrite Magnets at all. The show cause notice itself appears to be answering this question, as to whether the earlier consignments were magnets at all. The show cause notice para 26(iv) admits quote "Hard Ring Ferrite Magnets, imported into India and for that matter any where will be in a de-magnetized conditions". If that be so the benefit of the test report of the consignment sought to be cleared under the Bills of Entry no. 115277 should be given to the consignments cleared under the previous seven consignments as well. HRFMs can be imported only in De-magnetized condition, as per Department's own version. It is, therefore, reasonable to assume that in the past also HRFMs were not imported attracting anti-dumping duty. It is not as if that in those 7 consignments magnets were imported even though HRFMs can be imported only in de-magnetized form. Anti dumping duty therefore cannot be demanded on the differential weight alleged to have been misdeclared in the seven earlier consignments. What is good for the goose must be good for the gander.
6. We may also point out that we are not accepting the method adopted by the department to ascertain the actual net weight of the consignments already cleared. We are not going in to the various assumptions/documents relied upon to ascertain the net weight as that exercise is futile in view of our finding that Anti dumping duty is not leviable on the consignments cleared under the seven Bills of Entry for the same reason that it is not leviable on the consignment sought to be cleared under the Bills of Entry no. 11527. Once it is held that anti dumping duty is not leviable, the demand for such duty does not survive and consequently confiscation and penalty also do not.
7. The appeal is allowed.