Custom, Excise & Service Tax Tribunal
The Commissioner Of Customs (Import) vs Saroj Impex on 13 July, 2009
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No.II APPEAL No.C/57/09, C/58/09, C/59/09, C/60/09, C/61/09, C/62/09, C/63/09, C/64/09, C/65/09 Appln.No.C/S/116/09, C/S/117, 09, C/S/118/09, C/S/119/09, C/S/120/09, C/S/121/09, C/S/122/09, C/S/123/09, C/S/124/09 (Arising out of Order-in-Appeal No., 269, 268, 262, 266, 264, 270, 263, 267 & 265 (ADC GR.VA)/2008 (JNCH) dated 23/10/2008 passed by Commissioner of Customs (Appeals), Nhava Sheva) For approval and signature: Honble Mr.A.K.Srivastava, Member (Technical) Honble Mr.Ashok Jindal, Member (Judicial) ====================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
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The Commissioner of Customs (Import),
Nhava Sheva Appellants
Vs.
Saroj Impex
Naveen Bearing Co.
Ajmera Enterprises
Subhash Machinery Corporation Respondents
Mascot Enterprises
Bandana Bearing Agencies
Modern Associates
Harman Overseas
Appearance:
Shri.P.K.Agarwal, SDR for the Appellants
Shri.J.S.Sanghvi, Advocate for the Respondents
CORAM:
Mr.A.K.Srivastava, Member (Technical)
Mr.Ashok Jindal, Member (Judicial)
Date of hearing : 13/07/2009
Date of decision : 13/07/2009
O R D E R No:..
Per: Ashok Jindal
1. These appeals alongwith stay petitions are filed by the Revenue for seeking the stay of operation of the order-in-appeal.
2. The brief facts of the case are that the respondents, who are the importers, filed the Bills of Entry for the clearance of DPI/ZWZ brand Ball Bearings and Pillow Blocks of Chinese origin.
3. The importers informed the Department that their supplier had mistakenly mentioned incorrect weight on the Bill of Lading and they submitted a fresh worksheet indicating net weight of each bearing. Since ball bearings/pillow blocks are prone to undervaluation, they are being assessed by taking the minimum base value on weight basis, which is reviewed regularly depending on the fluctuations in the import price of basic raw materials. It is well known amongst the trade that the valuation of bearings is done as per the respective price list of the brands being imported subject to minimum floor price on weight basis as per Valuation Guideline No.1 dated 06/02/2008 issued by Directorate General of Valuation. This valuation policy for bearings is uniformly followed at all the Commissionerates across the country. Consideration of the net weight for determining the minimum base price has been prevalent for many years and is known to the importers. It appears that the importer has deliberately misdeclared the gross weight with a view to impress upon the Department for assessing the goods at lower values. Recently, it was observed that some of the importers were mis-declaring the net weight of the bearings so as to impress upon the Department to assess at lower values. Various cases were noticed and the importers have accepted and paid the differential amounts.
4. In these cases also, the importers had declared less weight and on the same, duty was calculated on the basis of minimum floor price of USD 2.12 per KG (CIF) fixed for Chinese bearings and Rs.53/- per Kg for Pillow Blocks. It was, however, found that the mis-declaration of weight and value by the importers, has caused a revenue loss to the Department. The Additional Commissioner of Customs found that importers have deliberately mis-declared the weight of the subject consignments in order to assess the goods at a lower value and consequently evade the duty. Accordingly, the redemption fine and penalty were imposed upon the importers.
5. On appeal by the importers, before the Commissioner (Appeals), the orders of confirming the redemption fine and duty were reversed and orders were passed for the refund of excess duty paid, redemption fine and penalty.
6. Aggrieved by the said orders, the Revenue is in appeal on the ground that the Revenue was not given any opportunity of being heard before passing the said Orders-in-Appeal.
7. Heard.
8. We find that the appellate authority has not followed the principles of natural justice by not giving any opportunity of being heard to the Revenue.
9. Accordingly, we also take up the appeal for hearing at this stage.
10. The appellate authority has passed the order for refund of excess duty paid, redemption fine and penalty to the respondents, which may prejudice the right of the Revenue.
11. We grant the stay of operation of the impugned orders and further remand back the appeals to the appellate authority to pass the necessary orders afresh after following the principles of natural justice by giving an opportunity to the Revenue of also being heard in the matter.
12. In these terms, the operation of the impugned orders is stayed and the appeals are remanded back to the appellate authority. He will pass appropriate orders in accordance with law after hearing both sides.
(Pronounced in Court) (A.K.Srivastava) Member (Technical) (Ashok Jindal) Member (Judicial) pj 1 4 2