Customs, Excise and Gold Tribunal - Tamil Nadu
M/S Ackshai Marketing & Services ... vs Commissioner Of Customs, Chennai on 30 March, 2001
Equivalent citations: 2001ECR120(TRI.-CHENNAI)
ORDER
Shri S.S. Sekhon
1. These four appeals are against the following order of Commissioner (Appeals):-
"ORDER (1) For the reasons stated above. I confiscate all the three live consignments covered by Bills of Entry No.10380, 10381 and 10382, all dated 29.2.96, and allow re-shipment thereof, as prayed for by the noticee, on payment of a fine of Rs.10,00,000/-(Rupees Ten Lakhs only) (2) I confiscate the silk yarn covered by Bill of Entry No.6199 dated 5.2.96, under Section 111(m) of the Customs Act, 1962 read with Sec.111(d) and allow an option of redemption in respect thereof on papyment of Rs.5,50,000/- (Rupees five lakhs and fifty thousand only). On redemption, the duty under demand to the extent of Rs.11,77,295/- shall be payable.
(3) Having regard to the facts and circumstances of the case, I impose a penalty of Rs.1,00,000/- (Rupees One lakh only) on the noticee under Sec.112 (a) of the Customs Act, 1962.
2. The brief facts of the case are, the appellant, a 100% Export Oriented Unit (EoU), imported certain yarns for use in the manufacture of their declared end product. However, on examination of three consignments covered by Bills of Entry No.10380, 10381 and 10382, all dated 29.2.96, it was observed that the goods were mis-declared. The packages were containing cotton yarn, instead of declared woolen yarn in first two cases and a blend of 70% acrylic and 30% woolen yarn in the third case. Enquiries were made and it was observed that a consignment was cleared earlier which was found to have been stored in their bonded ware house. This consignment was cleared on Bill of Entry No.6199 dated 5.2.96, which was declared to contain 100% acrylic yarn but on examination, the package was found to contain silk yarn. It was also noticed that packages were bearing the printed description of 'cotton yarn of Indian Origin' which was over pasted by a label containing the declared descriptions.
3. We have heard Ms.Sakthi, Learned Advocate for the appellants and Shri S.Arumugam, Ld.DR for the Revenue and after considering the submissions of both sides we find-
(a) The Collector has come to a conclusion, regarding the proposal for confiscation of the impugned goods, on the grounds of mis-declaration and has ordered the confiscation thereof. However, there is no finding arrived at, as regards the market price of the goods, which, we find, was imperative on his part to have determined, as redemption fines under Section 125 of the Customs Act are determined based on the market price and margin of profit. Therefore, we cannot give a finding whether the redemption fines are adequate. Such orders are, therefore, liable to be set aside.
(b) We find, that in respect of Bills of Entry No.10380, 10381 & 10382 all dated 29.2.96, the Commissioner has granted permission for export of the said consignments. These consignments were under clearances and have been permitted to be exported. Revenue has not come up in any appeal, against this decision of the permission of export of these goods, which were found to be mis-declared. Therefore, we cannot appreciate the argument of Ld.JDR that redemption fine for mis-declared goods even though permitted to be exported was positively called for. Since the Revenue has not come in any appeal against the order of the re-export by the original authority and also appellants are wanting exports of the goods, we allow the export of the said consignment within a period of three months from the date of receipt of this order without any redemption fine in the facts of this case. On this issue, we are supported by the judgement of Hon'ble Supreme Court, cited by Ld.Advocate, in the case of SIEMENTS LTD Vs CC reported in 1999 (113) ELT 776 (SC) and the Tribunal in the case of HCL HEWLETT PACKARD LTD Vs CC reported in 1997 (92) ELT 367 (T) wherein the Supreme Court as well as the Tribunal have not upheld the imposition of redemption fine of goods which are eventually permitted to be exported even though they were held liable for confiscation.
(c) The consignment which were found and seized in the bonded ware house has been permitted to be cleared from customs and is found to be mis-declared. Therefore, its liability for confiscation is upheld. However, redemption fine determination, thereof, has not been arrived at as per the formula prescribed under Section 125. We would therefore remand the matter back to the original authority for re-determination of the same after putting the importers to a notice and thereafter deciding the matter by following the principles of natural justice as regards margin of profit, market price and evidence thereto.
(d) As regards penalty, we would set the same aside and remand the matter back to determine the imposition and or quantum of penalty required to be imposed in this case, as three consignments are permitted to be exported and it is only one consignment, which is held liable for confiscation due to alleged mis-declaration.
(e) We find, that a duty demand has been made but from the facts of the case, it appears that the goods were found in the bonded warehouse. We, therefore, cannot uphold the liability for duty so long as the goods are in the bond within the bonded period. The order does not indicate how the duty liability arises. Therefore, the duty as determined is also set aside with directions that the same should be determined as per the provisions of law.
4. In view of our findings above, we set aside the order, allow the export of consignments covered by Bills of Entry No.10380, 10381 and 10382 all dated 29.2.1996 within a period of three months from the date of receipt of this order. The orders of confiscation, redemption fine and duty on the consignments is set aside and the matter concerning Bill of Entry No.6199 dated 5.2.96 is remanded back to the original authority for de novo adjudication in the above terms. Ordered accordingly.
(pronounced and dictated in open court)