Customs, Excise and Gold Tribunal - Tamil Nadu
Usha Martin Industries Ltd. vs Collector Of Customs on 21 December, 1994
Equivalent citations: 1996(85)ELT269(TRI-CHENNAI)
ORDER V.P. Gulati, Member (T)
1 This appeal is against the order of Collector of Customs (Appeals), Bangalore. Under the impugned order, the learned lower authority has modified the order of the original authority reducing the redemption fine in respect of the goods from Rs. 3.00 lakhs to Rs. 50,000 held to be confiscable and the penalty on the appellant from Rs. 2.00 lakhs to Rs. 50,000.
2. The learned Consultant has pleaded that the brief facts of the case are that the value of the goods in the bill of entry came to be declared low by Rs. 3.00 lakhs by mistake primarily on the part of the clearing agent, who did not take note of the fact that there were two invoices which were identically worded covering the goods under importation and the clearing agent entered the value as shown in one of the invoice in the bill of entry. He pleaded that according to the appellants, originally the mistake was detected by the customs house and therefore a serious view was taken by the learned original authority and a high redemption fine of Rs. 3.00 lakhs was imposed and also a penalty of Rs. 2.00 lakhs. As it is he pleaded that Section lll(d) could not be invoked as the case was of misdeclaration of value and only provision in this regard is Section lll(m). He, however, pleaded that the learned lower appellate authority appreciated the facts in the correct perspective and took note of the fact that the clearing agent had owned up the mistake for not declaring the value correctly and in Para 7 of the order has observed as under :
"Keeping in view the above Judgments and in the absence of any evidence from the Department, to substantiate an intentional attempt to evade customs duty and further considering the fact that goods were not prohibited for import and having been duly covered by the Actual user certificate issued by the DGTD, ipso facto there is a case for lenient view of the whole episode. Hence the confiscation denial of the concessional rate of duty besides the deterrent penalty appears to be highly excessive when viewed in the context of the gravity of the offence committed in the above circumstances."
He pleaded having held that confiscation/denial of the concessional rate of duty was harsh, he should have set aside the order of confiscation and also the levy of penalty. He pleaded that in the light of the findings of the learned lower appellate authority, the order of the learned lower authority so far as the appellant is concerned should be set aside.
3. The learned SDR has pleaded that the learned lower authority in his order no doubt has held the confiscability of the goods under Section lll(d), he has in the findings clearly mentioned that there was mis-declaration of the value and has invoked Section lll(m) against the appellants. He pleaded that on facts it is not disputed that the value declared in the bill of entry was lower than the actual value of the goods. But, for the alertness of the officers the assessment would have been done at the lower value resulting in loss to the exchequer. The learned SDR pleaded that it is as much as the duty of the importer as that of the clearing agent to ensure that the correct value is declared in the bill of entry. As it is the declaration is signed by the importer and once he has certified to the correctness of the price declared in the bill of entry, which will also include the value, the importers cannot plead ignorance. He pleaded that as it is the learned lower authority has been more than lenient and therefore no further leniency should be shown.
4. I have considered the pleas made by both the sides. The fact of under declaration of the value is not disputed. Appellants' plea is that it was the fault of the clearing agent and he failed to take note of the two invoices which the appellant had submitted for filing before the customs authorities. It is a matter of record that during the course of the processing of the bill of entry for assessment and other purposes, the authorities on scrutiny of the documents detected the under declaration. As rightly pointed out by the learned SDR the appellants had subscribed to a declaration in the bill of entry vouchsafing the value declared which in fact was not correct. In the face of the above, the appellant cannot escape the blame for non-declaration of the correct value. In this view of the matter, goods have to be held to be confiscable under Section lll(m) and appellants liable to penalty. However, taking into consideration the value under declared, according to the learned Consultant, was about Rs. 3.00 lakhs, I hold that the redemption fine of Rs. 50,000 cannot be considered as excessive. So far as the levy of penalty is concerned, taking into consideration the findings of the learned Collector wherein he has not upheld the findings of mala fides against the appellants, I hold that ends of justice would be served if the penalty is reduced to Rs. 20,000 (Rupees twenty thousand). But, for the above modifications, the appeal is otherwise rejected.