Custom, Excise & Service Tax Tribunal
Venugopal Engineering Pvt. Ltd vs Commissioner Of Customs on 30 May, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. I
APPEAL NO. C/154 and 283/10 Mum
Arising out of Order-in-Original No. 171/2009/CAC/CC(I)/ SHH/VA dated 30.11.2009 passed by the Commissioner of Customs (Import), Mumbai.
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
Honble Shri P.K. Jain, Member (Technical)
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 : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
Venugopal Engineering Pvt. Ltd.
:
Appellant
(in Appeal No. C/154/10)
Versus
Commissioner of Customs,
(Import), Mumbai
Respondent
.
Commissioner of Customs (Import), Mumbai (in Appeal No. C/283/10) Appellant Versus Venugopal Engineering Pvt. Ltd.
Respondent Appearance Shri K.R. Bulchandani, Advocate for appellant/assessee Shri D.V. Nagvenkar, Addl. Commissioner (A.R.) For Respondent CORAM:
Shri Ashok Jindal, Member (Judicial) Shri P.K. Jain, Member (Technical) Date of Hearing : 30.05.2014 Date of Decision : ..
ORDER NO.
Per P.K. Jain An intelligence was collected by Revenue Intelligence that M/s. Venugopal Engineering (P) Ltd., Videocon Group Company has imported 3000 kits of National Brand Room Air Conditioners and they have mis-declared the said kits as components/parts of Ventilating and Recycling hood to evade huge amount of customs duty. The office, factory premises and other connected premises of the appellant/assessee in Mumbai, Aurangabad and Ahmednagar were searched and number of incriminating documents were seized. During further investigation, statements of the Managing Director, persons connected with the import of the kits as also the persons connected with the production of the air conditioners were recorded and based upon the investigation a demand notice dated 15.10.19990 was issued. The case was adjudicated by the Commissioner of Customs. The appellant/assessee filed an appeal against the said order. The matter came up before this Tribunal and this Tribunal vide order No. C-1/4013/WZB/2000 dated 09.11.2000 remanded the matter back to the adjudicating authority with following directions:-
4. It is not possible for us to agree that the questions involved are purely legal. What is, essentially, for consideration is whether the goods in question are classifiable as parts of air conditioners or parts of ventilating goods. Answering these questions it involves facts and law. Substantially the questions involved are those of facts. The refusal for cross-examination on this ground was also not justified. However, we must not be understood as saying that we permit cross-examination of all persons; to cite just one example, it is not clear to us why the apprising officers cross-examination is required merely to prove that split invoices are issued by M/s Yamato Industrial Company, the Japanese supplier. This fact can be established by producing the invoices in question.
5. We are also not able to accept the dismissal of the certificate of the Mechanical Engineering Department of Government College of Engineering, Pune on the ground that those who issued it were academicians who could not understand the customs tariff or the Explanatory notes. Classification of a commodity requires not only understanding of the customs tariff or Explanatory Notes, but understanding of the mechanical principles and procedures to relating to its use or application, to a large degree. It would not be correct to say that the opinion of College of Engineering relating to this aspect should be dismissed merely because those who issued it are academicians. If, by calling them academicians the Collector means to say that they have no practical knowledge of engineering that would in fact hold true of the Collector and members of the various appellate authorities who sit in judgement on his orders. The Collector may be an expert in classification but he was, surely, not an engineering expert. Here again, we emphasise between considering the certificate of the College of Engineering and accepting it as correct. We do not express any opinion on the correctness or otherwise of the contents of that certificate. All that we say is that it should not have been brushed aside without considering it. If the certificate contained nothing to support the appellant case, or presented an incorrect opinion, it was open to the Collector to say so.
6. The advocate for the appellant has produced before us considerable technical material, which he says support his contention. He has quoted from the book Basic Refrigeration and Air Conditioning, Second Edition, published by Tata McGraw-Hill Publishing Company Ltd., New Delhi; Air Quality Control Handbook by E Roberts Alley & Associates Inc., published by McGraw-Hill; and Handbook fo Air Conditioning, Heating and Ventilation by Stamper & Koral, published by Industrial Press Inc., New York. We are of the opinion that the Commissioner should consider this material.
7. In his order the Collector has imposed penalty on the appellant for rendering the goods liable to confiscation under Section 111(m) of the Act. He says that he has taken a lenient view in the quantum of penalty, having regard to the fact that the importer willingly paid the differential duty when it was brought to the notice that imported goods were not parts of ventilating or recycling goods but were merely parts of air conditioners. He further finds that it was possible to V.N. Dhoot (of the appellant) was labouring under a mistaken belief that, by stretching the legal position, the goods could be classified under the category of parts of ventilating and recycling goods also and thereby he could save substantial amount of duty. If this is the position, and none of it had been challenged by the department, we are of the view penalty was not imposable at all. The Collector in effect says that the appellant could have believed that the goods were classifiable under a different heading than the one claimed by it for which he finds support from the fact that the appellant promptly paid the differential duty that was demanded. Further, his order does not cite any specific act or misconduct neither his findings. In these circumstances we are of the view that penalty was not imposable on the appellant and set it aside.
8. Accordingly we set aside the order of the Collector. He shall decide on the classification of the goods, and their liability to confiscation, after giving the appellant a reasonable opportunity of being heard, and after considering the request for cross-examination of witnesses and evidence that may be produced before him by the appellant. We make it clear that the department is at liberty to cite any evidence in support of its contention provided the appellant is given sufficient opportunity to deal with that evidence. In pursuant to the said order of this Tribunal, the impugned order has been passed by the adjudicating authority. In the said order, the adjudicating authority has confirmed the demand of Rs.1,06,33,279/- in respect of 1500 kits of room air conditioners along with interest. Further in respect of remaining air conditioners, two bills of entry (Nos. 1060/314 & 1375/433) covering 750 kits each at the higher rate as indicated in original demand notice and duty to be recovered with appropriate interest. Further 3000 kits of air conditioners covered under four bill of entry of CIF value of Rs.1,89,63,789/- were ordered to be confiscated under Section 111(m) of the Customs Act. The goods covered under all the eight bill of entry collectively valued at Rs.2,69,48,825/- were ordered to be confiscated under Section 111(d) of the Customs Act. Further, the said goods were permitted to be redeemed on payment of fine of Rs.78,00,000/- under Section 125 of the Customs Act. Aggrieved by the said order of the Commissioner, the appellant/assessee are before us.
2. Revenue is also in appeal against the impugned order and the Revenues grievance is that the Commissioner has failed to impose penalty on various persons under Section 112 of the Customs Act.
3. The main point to be decided in this case is whether the goods imported by the appellant/assessee are classifiable under sub-Heading 8414.90 as claimed by the appellant/assessee or under 8415.90 as claimed by the Revenue. Depending upon the decision, rate of duty changes hence the liability to pay duty would change. There are other issues relating to confiscation under Section 111(m) and 111(d) of the Customs Act, 1962. Sub-Heading 8414.90 covers the parts of ventilating or recycling hoods incorporating a fan, whether or not fitted with filters while the sub-Heading 8415.90 covers parts of air conditioning machines.
4. The case was extensively heard on 30.05.2014. After the hearing, both sides were asked to give a brief of their arguments/contentions which were submitted by appellant/assessee on 11.6.2014 and Revenue on 16.6.2014. The learned Advocate for the appellant/assessee has raised certain preliminary objections, during hearing as also written submissions.
4.1 The first preliminary objection was that during cross examination the Appraiser Shri R.P. Mishra has stated that he has assessed the bill of entry on certain conditions which may be on other copies of the Bill of Entry with the department. Learned Advocate stated that they have requested the adjudicating authority to furnish copies of such bill of entry. However, the same was refused and the adjudicating authority has failed to furnish the copy of such bill of entry and it is therefore presumed that bill of entry was assessed unconditionally.
4.2 The other objection of the learned Advocate was that the cross-examination of the Assistant Collector of the Group was not allowed. According to the learned Advocate it was essential as Shri Mishra has stated that he has assessed Bill of Entry with the consent of the Assistant Collector of the Group. Learned Advocate also stated that they have requested cross-examination of Shri Sambhus as Shri Mishra, during the cross-examination has stated that Shri Sambhus insisted on assessment of Bill of Entry without production of literature /catalogue even though endorsement of having produced literature/catalogue was shown to Shri Mishra. Thus, it cannot be alleged that the Bills of Entry were assessed without the reference to literature, catalogue produced by the appellant/assessee.
4.3 Learned Advocate has also submitted that they have requested for cross-examination of Shri Rajiv R.Didholkar, Production Engineer to confront him with his actual duties, his knowledge and in what context and what circumstances he has stated that he has not heard about any equipment named ventilating and recycling hoods.
4.4 Another preliminary objection taken by the learned Advocate was that his request for sending the document (enclosure to invoice) to a handwriting expert was denied.
4.5 Coming to the merits of the case, the learned Advocate argued that in the manufacture of air conditioners, after manufacture/assembly of ventilating and recycling hoods incorporating a fan, compressors are fitted to ventilating and recycling hoods to manufacture air conditioners. According to the learned Advocate, ventilating and recycling hoods are thus manufactured/assembled by the appellant/assessee for captive consumption as intermediate product for use in the manufacture of air conditioners.
4.6 Learned Advocate further stated that under the four lots of imports, with each lot there is one Bill of Entry for parts of ventilating and recycling hoods. It was further contended that the parts of ventilating and recycling hoods are specifically classified under CTH 8414.90. Appellant/assessees accordingly imported the parts of ventilating and recycling hoods under specific invoices and they had approached Shri Mishra, Appraiser for classification of parts of ventilating and recycling hoods. Shri Mishra after reference to invoice, packing list, literature, catalogues, certificate dated 23.10.1989 and certificate/report issued by independent Government body Mechanical Engineering Dept., Government College of Engineering, Pune and after being fully satisfied in his own handwriting marked on the enclosure particulars to the invoice No.T002 dated 15.01.1990, the tariff head classification on merits against each and every part imported by the appellant/assessee with his initials on each page with date and signature. The assessment was finalized by Shri Mishra with consent of Group Assistant Collector.
4.7 DRI in the show-cause notice alleges manipulations and forgeries in classification and documentation solely on the ground that the appellant/assessee never manufactured ventilating and recycling hoods and therefore to evade duties manipulated classification of the goods. Thus, show-cause notice inter alia proceeded on end use to determine classification.
4.8 Learned Advocate argued that while determining the classification, the end user of the imported goods is immaterial when no actual user condition is attached on the importation of parts of ventilating and recycling hoods against transferable additional licences. He also argued that the specific classification in the Customs Tariff is a determining factor for classifying the imported goods as the test of end use of a particular item is of no relevance. [Dunlops India Ltd. - 401 AIR 1977 SC 597 (para 42)] 4.9 Parts of ventilating and recycling hoods are specifically classified under CTH 8414.90. Learned Advocate further argued that though compressors are parts of air conditioners, Customs department are classifying the same under 8414.80 and this classification continues till date. He further stated that in the show-cause notice the department has admitted that compressors are assessable under CTH 8414.80 but peculiarly ventilating and recycling hoods are illogically and illegally directed to be classified under CTH 8415.90.
4.10 The learned Advocate also argued that an assessee has a right to avoid duties within the frame work of law. With specific classification available, appellant/assessee has done no wrong by asking for revised invoices in consultation with the foreign suppliers and in accordance with the certificate dated 23.10.1989 issued by them. The appellant/assessee accordingly classified the goods under specific classification to save customs duties within four corners of law. The said action cannot be called evading of duty or manipulation or forgery. The appellant/assessee is entitled to legally arrange his affairs so that the tax burden on him is reduced.
4.11 The learned Advocate further argued that the allegations of fraud, manipulations, forgery etc. are of no relevance as penalty earlier imposed has been set aside by this Tribunal vide order dated 09.11.2000.
4.12 Learned Advocate further argued that the department in the entire show-cause notice has not stated that the parts imported and declared in the Bill of Entry as parts of ventilating and recycling hoods are not the parts of ventilating and recycling hoods. It is also not the case of the department that in the manufacture/assembling process, ventilating and recycling hoods, are not manufactured/assembled for captive consumption. As a step to the manufacture of air conditioners, first ventilating and recycling hoods with fan are assembled and then with the fitting of the compressor, an air conditioner is assembled. There is no evidence to the contrary produced by the department. It is also not the case of the department that in the assembly line, ventilating and recycling hoods are not assembled as intermediate product. Only after assembly of ventilating and recycling hoods, with the assembly of compressor, air conditioners can be assembled and are marketed.
4.13 Learned Advocate further argued that they have produced the evidence by an independent expert authority namely Head of the Department of Mechanical Engineering, Government College of Engineering, Pune but no evidence to contradict this evidence is produced by the department.
4.14 He further relied on the certificate dated 23.10.1989 issued by M/s Matsushita Industrial Co. Ltd., Japan, to support their case. In addition the certificate and report dated 25.09.1990 issued by the Head of Department of Mechanical Engineering, Government College of Engineering, Pune under their letter dated 15.10.1990 was produced. He further submitted that the said certificate elaborately discusses the process of manufacture/assembly of air conditioner certifying that with the prior stage of manufacture/assembly of ventilating and recycling hood with the arts as imported air conditioner is manufactured/assembled. They have also confirmed that prior to the final manufacture of air conditioner, the basis function of ventilating and recycling hood is the user thereof as intermediate product to manufacture a room air conditioner. The said certificate elaborately discusses on the extent and nature of the parts to be used and the systems which can be built there from, sets out that the air conditioner is thereafter assembled with reference to temperature, humidity, air-motion and with additions of refrigeration compressor, multipoint positioning switch, thermostat and heater or reversing wall. The said expert body has relied upon several authoritative references on the subject before concluding that ventilating and recycling hood is an intermediate product to manufacture an air conditioner.
4.15 The learned Advocate submitted that against the above evidence produced by the appellant/assessee, the department has not produced any evidence to the contrary. Learned Advocate has also relied upon two decisions of the Tribunal to say that the adjudicator cannot be final words to substitute expert opinion. Only the opinion of another expert classification of expert opinion can be done as held by the Tribunal in the case of Doyang Tea Estate vs. Commissioner of Central Excise, Shillong 2005 (186) ELT 342. Learned Advocate also quoted the judgement of this Tribunal wherein this very matter was remanded. Further he quoted this Tribunals decision in the case of Wipro Ltd. vs. CC Chennai 1999 (107) ELT 398.
4.16 The learned Advocate further submitted that the respondent however has relied upon extraneous evidence in the form of the download of images of ventilating and recycling hood from Google images from internet which evidence was never disclosed to the appellant/assessees at any time during the hearing on the above show-cause notice. It is well settled law that department cannot rely on any evidence never disclosed. Evidence for the first time is annexed to the impugned order. In any event the images so downloaded from internet are for extraneous products as hoods which are used in multiple products and therefore the same have no relevance in rejecting the case of the appellant/assessee. The learned Advocate also submitted that the respondent has confirmed and recorded in para 43 to 48 of the impugned order that ventilating and recycling hoods are captively consumed in the manufacture of an air conditioner. However, rejected the expert opinion on the ground that the team has not gone to the production floor to see the manufacturing activities.
4.17 The learned Advocate further submitted that the respondent has without any basis concluded that the ventilating and recycling hoods mentioned by the faculty is more a creature of their imagination and does not exist in reality and such conclusion makes the classification of ventilating and recycling hoods under Heading 84.14 redundant. The learned Advocate argued that such a finding and a conclusion drawn by the respondent is not only judiciously improper but exposes the bias or lack of application of mind by the respondent. The learned Advocate further stated that the respondent has given undue importance to the statements of Shri V.N. Dhoot and Shri R.R. Didolkar that there is not even a whisper of the ventilating and recycling hoods as an intermediate product, ignoring the specific classification in the Customs Tariff. Learned Advocate further stated that if the classification done by the Appraiser and the assessment having been finalized with the consent of the Group Asst. Collector is of no significance in determination of the classification by this Tribunal, then the statements of Shri V.N. Dhoot and Shri R.R. Didolkar cannot be relied upon by the department to reject the case of the appellant/assessee. Learned Advocate further submitted that the statements of Production Engineer or of Shri V.N. Dhoot are of no consequence though much stressed upon by the Departmental Representative in his oral submissions.
4.18 Regarding the allegations of obtaining revised invoices, the learned Advocate stated that as Customs duty on the imports of parts of ventilating and recycling hoods were less than on the air conditioners under Heading 8415. They got the revised invoices from the foreign suppliers. However, there is nothing wrong in doing such thing.
4.19 The learned Advocate also argued that the classification and Heading 8415.90 was required to be done only when entire air conditioning machine was imported along with the parts thereto. The appellant/assessee have not imported air conditioning machine, the parts of air conditioners or ventilating and recycling hoods imported could not therefore be classified under Heading 8415.90. The learned Advocate submitted that the Customs department itself till to-date does not classifying the parts of air conditioners viz compressor under Heading 8415.90 but continues to classify the same under CTH 8414.80.
4.20 The learned Advocate further argued that wrong classification of imported parts in the facts and circumstance of the case cannot lead to confiscation of goods and levy of redemption fine. In support of his contention he stated that no redemption fine can be levied on goods finally assessed to duties cleared and not available for confiscation. According to the learned Advocate, two lots of goods under disputed Bill of Entry are finally assessed and cleared for home consumption. Even 3rd Bill of Entry was finally cleared though cleared for warehousing. Only one Bill of Entry provisionally assessed. According to the learned Advocate, no redemption fine can be imposed under those three Bill of Entry finally assessed and cleared as held in the following three case law:-
(a) Craft Studio v. CCE 2004 (163) ELT 109 (Tri. Del).
(b) Shiwalya Spinning & Weaving Mills (P) Ltd. vs. Commissioner of Customs, Amritsar 2002 (146) ELT 610 (Tri. Del).
(c) Prudential Pharmaceuticals Ltd. v Commissioner of Customs, Chennai 2001 (136) ELT 1057 (Tri. Chennai).
4.21 The learned Advocate further argued that the confiscation is permissible under Section 111(d) of the Customs Act if the goods are imported contrary to any prohibition imposed by the Act or any after law in force. Dispute relates to classification only and therefore not covered by Section 111(d) of the said Act. Hence the goods cannot be confiscated under Section 111(d).
4.22 The learned Advocate further argued that no redemption fine is imposable when dispute relates to classification, particularly when classification adopted by appellant/assessee cannot be said to have been done to evade duties in the facts of the case. Avoiding duties within four corners of law and classifying the goods in good faith, particularly when specific classification is available cannot lead to confiscation of goods.
4.23 The learned Advocate further argued that enhancing redemption fine by adding penalty amount thereto in the impugned order on remand, when the respondent could not impose any penalty in view of earlier finding in the Tribunals order. The learned Advocate also stated that the earlier order of the Tribunal was never challenged by the department and therefore it attained finality and as such no penalty can be imposed.
5. Learned A.R. on the other hand, argued that Heading 8414 covers ventilating or recycling hoods incorporating a fan, whether or not fitted with filters. On perusal of the related HSN Explanatory note, it is clarified This group includes cooker and hoods incorporating a fan, for use in the home or in restaurants, canteen, hospitals etc. as well as laboratory hoods and industrial hoods incorporating a fan. Thus, the said entry does not cover the sub-assembly of a room air conditioner.
5.1 The learned A.R. further stated that the appellant/assessee has divided entire air conditioners into just two sub-assemblies, viz. compressor and ventilating/recycling hood. Thus, when the appellant/assessee is trying to say that everything else other than the compressor becomes part of the ventilating/recycling hood, which has been done solely to clear all parts under lower rate of duty. Considering the description under Parts in HSN entry 84.15 along with Section Note 2(a), the various imported items under dispute are correctly classifiable under 8414.90. The statement of Production Engineer Shri Rajiv Didolkar is very relevant. The learned A.R. also stated that Shri Venugopal Dhoot, Managing Director of the Company, in his statement has explained in detail that how in order to avoid paying customs duty, he got description changed in the Bill of Lading, invoices etc. 5.2 The learned A.R. also argued that the learned Advocate for the appellant/assessee has objected for inclusion of images downloaded from Google and annexed in the impugned order. The learned A.R. stated that it is very normal practice for any adjudicator including Supreme Court and High Courts to take the help of dictionary, Encyclopedia Britannica and technical dictionary to decide the matter. With the advent of technology, now this is a common practice that instead of using dictionary, encyclopedia, one searches the same thing in Google. This is exactly what has been done. There is no new evidence. What is found on Goggle is discussed and has been annexed in order-in-original. This cannot be treated as a fresh evidence. The learned A.R. also argued that if contention appellant/assessee is taken, no Court will be able to use any dictionary or any other judgement or literature while deciding a case before informing the appellant/assessee.
5.3 The learned A.R. submitted that the cross-examination of Shri R.P. Mishra, makes it clear that the literature/catalogue was not put up and assessment was done as per importers stated description. Initials of Shri R.P. Mishra on the enclosure to invoice does not in any manner shift the onus of mis-classification made by the importer. Assessment document is Bill of Entry and not the invoice or enclosure to invoice. That is an arrangement between Shri Mishra and Appellant/assessee and has no legal force. Even otherwise Shri Mishra has only classified the parts based upon the main description (parts of ventilating and recycling hood) given by the appellant/assessee/importer. He further argued that Shri Sambhus was an employee of the appellant/assessee but was sitting in the office of CHA. His statements are important. Denial of cross-examination of Shri Sambhus in no way takes away the content of his statement. At this stage, Shri Sambhus will say anything to save his job.
5.4 Learned A.R further submitted that the experts advice has been obtained in October 1990 while the importation has taken place, much earlier. Terms of reference to the expert are not disclosed and these certificates have been taken without the knowledge of the Customs authorities. The expert opinion is inconsistent with the understanding of the terms Ventilating and recycling hood used in the Tariff and HSN Note.
5.5 The learned A.R. further submitted that the statement of Shri Venugopal Dhoot, the Managing Director and other officials of the importing Company, changes in the Bill of Lading, changes in the invoice very clearly indicates that there was malafide intention to evade customs duty. In case they had no such intention, even in the first invoice containing the description parts of room air conditioner they could have explained to the Customs that these are parts of ventilating and recycling hood and got it assessed at the lower rate of duty. The change in the documentation was only to mislead and thereby to evade payment of duty and hence confiscation and redemption fine is justified.
6. We have considered the rival submissions.
7. The learned Advocate for the appellant/assessee has raised certain preliminary objections relating to documents not supplied, cross-examination of certain persons not granted and reference to hand writing expert not allowed. We have anxiously gone through various preliminary objections and in our considered view before discussing and taking decision on these preliminary objections, it is important to understand and discuss about the classification and assessment procedure relating to parts of machinery in the Custom Houses. It is also noted that all the objections (barring cross-examination of Shri Rajiv R. Didolkar, Production Engineer) are consequent to cross-examination of Shri Mishra, Appraiser. Shri Mishra was expected to scrutinize Bill of Entry and thereafter Asstt. Collector was to approve the same. In view of this fact it is absolutely necessary to understand the classification of parts and assessment procedures being followed in the Custom House.
7.1 On going through the Customs Tariff particularly, Chapter 84, 85, 87, 90 etc. one would find term parts appearing in large number of Heading/sub-headings etc. Some Parts refer to machinery covered by more than one heading (e.g. 84.73 covers parts of 84.69 to 84.72), some time for one heading and sometime for few sub-headings. However, it is important to note that all parts required for manufacture of machinery covered by a group of heading/one heading/few sub-headings do not get classified as Part appearing in that group of heading/one heading/few sub-headings. Broadly these are required to be classified as discussed in subsequent paras.
7.2 In respect of machinery items, there are various parts which go into manufacture of any machine. Some of the parts may be specific for that machine while other parts may be usable in variety of machines. For example ball bearing is used while manufacturing fan, ball bearing is also find used in electric moter, automobile, machine tools and a variety of appliances etc. Specifications of the ball bearing in different usage may be different. Similar is the position in respect of electronic components like resisters, capacitors, diodes, transistor etc. which are used while manufacturing any electronic equipment etc. Generally, parts which are of general usage are appearing in the Customs Tariff by name i.e specific entry under some or other heading/sub-headings particularly in Chapter 84 and 85. Such parts of machinery which are mentioned in the Customs Tariff by specific names are classified under that specific Heading irrespective of the fact whether such part is used in the manufacturing process as part of machine x or y or z. In the earlier stated example ball bearings would be classifiable under Heading 84.82 irrespective of the fact such ball bearing is used as a part in the manufacture of fan or electric motor or automobile machine tools or some other machinery items. Similarly, valves are specifically appearing in 84.81, valve would be classified under Heading 84.81 irrespective of the fact that particular valve is a part of particular machine. Similarly capacitors, resisters, Diodes and transistors would be classifiable under Heading 8532/8533/8541 irrespective of the fact that a particular capacitor, resister, diodes is used in the manufacturing process as part of transmission equipment or receiving equipment or medical equipment or any other electronic equipment or computer or control panel or mechanical equipment. Another example is that of Gas Compressor. Since Gas Compressor is specifically listed in 8414, irrespective of end use, it will be classified under 8414. Depending upon end use sub-heading may change as there are different entries.
7.3 There are certain parts which get classified based upon the material from which the item is made of. For example parts made of rubber are classifiable under Chapter 40 irrespective of the fact that these may be part of electronic equipments or mechanical machinery or any other machinery. Similar is the position in case of parts made of ceramic. This is not true for all the materials. Such aspects have to be examined in terms of section/chapter notes.
7.4 Parts which are neither specifically listed nor are of the 2nd type (based upon material) normally gets classified under the Heading/sub-heading Parts which would be found in the tariff under various places. For example Heading 84.06 covers Steam turbines and other vapour turbines. As explained earlier if there is a part used in the manufacture of steam turbine but is specifically mentioned in tariff then that part has to be classified under that specific Heading and not as part under steam turbines and other vapour turbines falling under Heading 8406.90 even though the part may be used in the manufacture of steam turbines. Similar is the position in respect of rubber items, ceramic items, glass items and plastic items. Remaining Parts would of-course will get classified as parts under 8406.90.
7.5 In respect of any equipment say television set there are a large number of parts which are fitted together to make the assembly work as television. When somebody imports part of such television, one has to go through such a list and classify various parts by above mentioned broad principles. We may add that the earlier mentioned principles have to read with various Section notes and Chapter notes. Thus whenever an importer imports a large number of parts of any electronic equipment or house-hold equipment, the importer would be required to group various parts depending upon the classification. Some of the parts may fall under the description parts of that item say parts of television while other items which in reality are used in assembling the television but may be classified under specific headings or different headings. So in order to classify the parts, generally from the invoice, various items are grouped by the importer/CHA under different Chapter/ Headings/sub-heading. Thereafter, bill of entry is prepared by the importers or his CHA and filed accordingly. Many a times some of the importers/CHA after doing the preliminary exercise may informally consult the Appraiser who has to scrutinize the Bill of Entry whether or not the classification of the part done/grouped by them is correct.
7.6 Ideally while classifying various parts, catalogue literature of main machine detailing all parts is required. For example, in the present case catalogue of Ventilating and Recycling Hood detailing all the parts their name, composition etc. will be required. However, importers may have practical limitations in producing such detailed catalogue. They may be able to produce zerox/printout of photographs or some other leaflet and based upon such documents and keeping in view the broad principles discussed earlier, parts are classified assessed to duty and consignments are cleared.
7.7 For example if the parts are relating to television set importer would show under the Heading for television set and the relevant heading for the parts and thereafter on the basis of whether the items is specifically mentioned or made of items like rubber, ceramic etc. would decide the classification of each part and group in the Bill of Entry. The assessing officer assumes that such items are parts of television receiver. In this case since description in bill of entry itself indicated as parts of ventilating and recycling hood, the Appraising Officer and AC Group would classify various parts with respect to specific entry or composition or under Heading 8414.90. Only when there is an information or intelligence that the goods are being mis-declared, steps are taken to find out to the truth like searching the place of importer or taking the help of experts, if necessary. It has also to be appreciated that the Appraising Officer/Asstt. Collector are generalized officer and are expected to assess/classify all goods being imported whether it is metal or chemical or machinery or parts and it would be incorrect to assume that they know each and every thing of all goods. The system works on faith and trust and it is accepted that the importer would make correct declarations and officers broadly see that the actual imports match with the description/declarations. In fact in case of machinery items or more particularly parts it is purely based upon the declaration and the explanation of the importer or exporter.
7.8 As per Section 46 of the Customs Act an importer is required to file a Bill of Entry on importation of the goods. Thus the assessment of duty is done on the Bill of Entry. Invoice or enclosure to an invoice is not a document for assessment of custom duty. However, copy of invoice and packing list are generally checked by the customs officials to check whether the valuation, quantity etc. are correctly described in the Bill of Entry. Bills of Entry in the Customs House are first scrutinized/checked by the Appraising Officer. If the Appraising Officer is satisfied, he submits it for formal approval of the Asst. Collector (now Asst. Commissioner). Asst. Collector is the assessing officer as per the law and he approves the assessment. Further Bill of Entry is either assessed (i.e. finally) or provisionally assessed as per law.
7.9 During the course of examination of Shri Mishra, Appraiser has stated that the appellant/assessees has produced a copy of the invoice on which certain classifications were written and he had initialed the said invoice. During cross-examination though he accepted that the signature is his, on classification aspect he was not sure and, therefore, in this context the learned Advocate wants reference should be made to the hand writing expert. We find in the impugned order, various preliminary objections are discussed in para 58. The adjudicating authority has already accepted that whatever has been scribbled or written on the enclosure to the invoice is written by Shri Mishra and the adjudicating authority has proceeded on that basis. In view of the said position, we do not find any merit in the objections of the learned Advocate relating to that the reference should be made to hand writing expert. We also find that the adjudicating authority has correctly taken a view that various headings mentioned in the enclosure to the invoices are that of Shri Mishra but the invoices or the enclosure are not the assessment document. In view of the above position we do not find any merit in this primary objection of the learned Advocate to get the opinion of handwriting expert.
7.10 The other preliminary objection is that the department has not supplied other copy of Bill of Entry. During cross-examination Shri Mishra has stated that he has assessed the Bill of Entry on certain conditions which may be on other copies of Bill of Entry. It is to be appreciated that these bill of entries were assessed in 1990 and the learned Advocate for the appellant/assessee asked the same in 2009 i.e. after 19 years. In any case since the bill of entry were assessed and were not assessed provisionally, one has to assume that the same were assessed unconditionally. There is nothing like conditional assessment under the Customs Act. If there was any condition, the condition was required to be enforced before the assessment or clearance etc. or if that was not possible to resort to provisional assessment. In view of this position, we agree with the learned Advocate that it has to be presumed that Bill of Entry were assessed unconditionally. The case has to be decided on this assumption 7.11 Another preliminary objection raised by the learned Advocate that he has not been allowed to cross-examination of the AC. It is seen from the impugned order that neither Shri Mishra nor the appellant/assessee could tell the name of AC. As the matter was almost 19 years old and in the absence of details of name of A.C., one cannot expect adjudicating authority to call him. In our opinion the bill of entry are to be assessed by the Asst. Collector and there can be no doubt that the bill of entry were assessed by AC Group. The learned Advocate for the appellant/assessee has also stated in preliminary objections, since the bill of entry were assessed with the consent of Asst. Collector, the appellant/assessees cannot be held liable for any alleged mis-declaration of wrong classification. We are unable to agree with this contention. The fact that the Bill of Entry was assessed by AC does not automatically lead that the appellant/assessee has not done any mis-declaration which lead to the wrong classification. The Appraising Officer or the AC would do the classification based upon the information and documents supplied by the importer. If manipulated documents or manipulated information are submitted to the Appraising Officer and the Asst. Collector, they would do the classification based upon such manipulated documents/information and the importer definitely could be held liable for such mis-declaration.
7.12 The learned Advocate for the appellant/assessee has also asked cross-examination of Shri Sambhus. Shri Sambhus is an employee of the appellant/assessee and was dealing with the clearance work and use to sit in the CHAs office. Reason for declining the request for cross-examination has been given in the impugned order in para 5.8 and we are fully satisfied with the explanation.
7.13 Shri Sambhus is a co-noticee, the matter is more than 19 years old and Shri Sambhus is also an employee of the M/s. Videocon Group. We note that while the appellant/assessee have been able to produce invoice T002 along with the enclosure as also copy of the bill of entry on which assessment were made, the so called literature and catalogue produced by them at the time of clearance has not been produced by them in reply to show-cause notice in 1990 or before the adjudicating authority either in 1991 or 2009or before this appellate Tribunal in both the rounds of litigation. We are unable to appreciate why the appellant/assessee has not able to produce the literature and catalogue which they claim to have produced to the Appraising Officer at the time of clearance of goods. The obvious conclusion is either no such detailed literature or catalogue was produced or if produced, must be Xerox of some photograph or manipulated document. In fact, if there was detailed catalogue indicating that parts in question are parts of ventilating and recycling hood, there was no need to go for expert opinion, by them.
7.14 Another objection is relating to the cross-examination of Shri Rajiv R.Didolkar, Production Engineer. Shri Rajiv R.Didolkar was a Production Engineer in the appellant/assessees factory and his statement was recorded and during the statement he has indicated that he has never heard about ventilation and recycling hood. The learned Advocate for the appellant/assessee was requested to provide his latest address which they failed to do so and Shri Rajiv R.Didolkar was not available on the address known to the department. Under the circumstances, as held by the adjudicating authority it is not possible to produce Shri Rajiv R.Didolkar for cross-examination. In any case, he has stated that he had not heard of ventilating and re-cycling hood in the production of air conditioner or similar item being manufactured by them. We agree with Learned adjudicating authority that under the circumstances, it is not possible to produce Shri Dicolkar.
8. Having dealt with the preliminary objection, now we go into the merit of the case.
8.1 The dispute in the present case is whether the goods imported are parts of ventilating and recycling hood or parts of air conditioners. The relevant entries in the Customs Tariff at the relevant time read as under:-
84.14 Air or vacuum pumps, air or other gas Compressors and fans; ventilating or recycling hoods incorporating a fan, whether or not fitted with filters 8414.10 Vacuum pumps 50% 8414.20 Hand-or foot-operated air pumps 50% 8414.30 Compressors of a kind used in Refrigerating equipment 110% 8414.40 Air compressors mounted on a Wheeled chassis for towing 50% Fans :
8414.51 Table, floor, wall, window, ceiling Or roof fans with a self contained Electric motor of an output not Exceeding 125 W 110% 8414.59 Other 110% 8414.60 Hoods having a maximum Horizontal side not exceeding 120 W 110% 8414.80 Other 110% 8414.90 Parts 100% 8.2 Before going to the parts, it would be important to understand the scope of term Ventilating and recycling hood incorporating a fan whether or not fitted with filter, as used in Customs Tariff. Customs Tariff is based upon BTN/H.S.N system of classification. The HSN Explanatory Notes deals with the scope of various terms used in BTN/H.S.N. For the said term, relevant explanation is reproduced below:-
VENTILATING OR RECYCLING HOODS INCORPORATING A FAN, WHETHER OR NOT FITTED WITH FILTERS This group includes cooker hoods incorporating a fan, for use in the home or in restaurants, canteens, hospitals, etc. as well as laboratory hoods and industrial hoods incorporating a fan.
It would be seen that understanding of the term Ventilating and recycling hoods is that such items are for use in the home or in restaurants, canteens, hospitals etc. as well as laboratory hoods and industrial hoods incorporating a fan. It is not the case of the appellant that parts imported are with reference to any such ventilating and recycling hood. From the above description it is clear that the scope of the said term is not with reference to ventilating or recycling hood which are purported to be part of some other machine like air conditioners (if at all such a thing exist).
8.3 We also find that the learned adjudicating authority in his adjudication order has made an efforts to find the scope of the said terms from Google on the Internet and included the details in enclosure A to the impugned order. The learned Advocate for the appellant/assessee has objected and stated that the adjudicating authority should not have included additional evidence in the impugned order. In our view what has been included is not additional evidence but only understanding of the term worldwide. It is not unusual that the Honble Supreme Court, High Courts or this Tribunal or for that matter any other adjudicating authority takes help of the dictionary, encyclopedia to understand the scope of terms. With the advent of technology, internet and Google images are substitute of dictionary/encyclopedia information that is included is of similar nature. It cannot be considered as evidence. It only helps in understanding the meaning of the term. The objection of the learned Advocate for the appellant/assessee is without any strength and is rejected. We also note that the learned Advocate for the appellant/assessee in the appeal before us has not been able to make any case why the details/images are incorrect and what is wrong with the said details but only objection is why it has been included in the adjudication order.
8.4 Coming to the details that have been obtained from Google images, we find that these details exactly tally with what is indicated in HSN Explanatory Notes. The only inevitable conclusion is that ventilating and recycling hood falling under Heading 84.14 of the Customs Tariff are the ones which are used in home, restaurant, canteen, hospital etc. There is no concept/general understanding that ventilating and recycling hood are used as parts/sub-assembly of room air conditioners.
8.5 We find the learned Advocate for the appellant/assessee has given lot of emphasis about the report dated 25.09.1990 obtained from Department of Mechanical Engineering, Government College of Engineering, Pune. We have carefully gone through the report. We find that the report starts with need of ventilation and thereafter defines meaning of ventilation, Mechanical Ventilation, Natural Ventilation, positive ventilation, Mechanical Ventilation General, Field of application of Ventilation, Minimum Ventilation for human occupancy, Re-circulated Air, Return Air, The supply and return air Grills, the meaning of hood. These definitions have been extracted from various books mentioned in the report. None of these definitions support the case of appellant. All that these definitions indicate is need of replacing stale/smelled air by fresh air at normal room temperature and how the same is done. However, in the report thereafter ventilating and recycling hood and equipment required for ventilation are briefly discussed. However, for these there is no reference of any standard book. In the list Equipment required for ventilation, the first item is Hermetically sealed refrigeration compressor. It is not clear why for ventilation hermetically sealed refrigeration compressor is required. Similarly, other equipment include condenser, evaporator, expansion device also heater. This list is not based upon any authoritative literature but was based upon what is used in the room air conditioner system and not the equipment requirement for ventilation. Thereafter, para 15 lists out various parts which have been imported and in subsequent para it gives photographs of room air conditioner in which compressor is removed, photographs are from different angle. Again these photographs are not based upon authoritative literature. But photographs of room air conditioner with certain parts removed. We also note paragraph 18 of the report talks about Principle of air conditioning which is again based upon authoritative literature. A careful reading of the report indicates that the authoritative literature and books consider ventilating and recycling hoods as is understand in the tariff or on the Google image. In between portion of the report appears to have been introduced to suit the requirement of present appellant/assessee. A simple purpose of ventilation and recycling hoods is to remove the stale air or smelled air and inject fresh air at the normal atmospheric temperature. Purpose of air-conditioning is to control temperature humidity etc. and also inject fresh air etc. As noted earlier, report indicates items like condenser, evaporator, expansion device, refrigeration compressor etc. as equipments required for ventilation. In view of this position, we find the report cannot be relied upon. In fact, wherever report is based upon authoritative literature, it only supports the case of the Revenue. Para 13 to 17 are not based upon any authoritative literature. Appellants contention that ventilator and recycling hood is part of room air conditioner is not supported by any literature.
8.6 Other document on which the appellant/assessee has been giving emphasis is a letter dated 23.10.1989 given by the supplier. We have gone through the said letter and the heading indicates Assembly of air conditioners. The said certificate in brief tells various items to be assembled. The only sentence in the certificate relevant to the present issue is Along with filter and grille, this stage of assembly is called Recycling hood assembly with ventilation function. We note that items like evaporator, condenser etc. are being considered as part of recycling hood assembly with ventilator function. A reading of the letter dated 21.10.1989, gives us the impression that the sentence has been introduced to suit the requirement of appellant. It does not clarify how and what works as recycling hood and what ventilation function is being carried out. We also note that this certificate dated 23.10.1989 was not found during the search operation in 1990. During the recording the statements including that of Shri V.N. Dhoort, M.D., Shri Rajiv R. Dodolkar and Shri Jayaraman Gopalan who were technical people actually involved in assembling the air conditioners but nobody talked about this letter. On the contrary, had indicated their ignorance about the ventilating and recycling hood and Shri V.N. Dhoot the Managing Director explained in detail how and why the term was used in order to save the customs duty.
8.7 In view of the descriptions given in the tariff, HSN Explanatory Notes relating to ventilating and recycling hood, details available on the Internet in the Google search, report of the Mechanical Engineering Department, Govt. College of Engineering, Pune (as discussed earlier) and the certificate dated 23.10.1989 we have no hesitation in holding that the term ventilating and recycling hood as used in tariff does not cover the Ventilating and recycling hood purported to be an intermediate product in manufacturing of room air conditioner but to such items used in home or in restaurants, canteens, hospitals etc. In view of this conclusion, the parts imported by the appellant/assessees cannot be considered as parts classifiable under heading 8414.90. In fact, in our view the sub-assembly of air conditioners to which the appellant/assessee is claiming to be ventilating and recycling hood is incorrect and supported by no catalogue literature or any authoritative book. All this is based upon the imagination of appellant as is clear from statement of Shri V.N. Dhoot, Managing Director. There is no dispute all the parts were used to assemble room air conditioner and therefore are to be considered as parts of air conditioner falling under 8415-90.
8.8 The learned Advocate has submitted that Shri Mishra, Appraiser has classified the parts under 8414.90, after going through the invoice, packing list, literature catalogue, certificate dated 23.10.1989 and certificate/report issued by the Department of Mechanical Engineering, Govt. College of Engineering, Pune and after being fully satisfied in his hand writing classified the items on the invoice T002 and since the assessment has been finalized by Shri Mishra with the consent of Asst. Commissioner, the assessment was final. We are unable to understand how the certificate/report dated 25.09.1990 could be made available to Shri Mishra when he has finally assessed the bill of entry in May 1990. In fact, the said report was obtained by the appellant/assessee after Directorate of Revenue Intelligence intervened and seized the goods. Further, we are also not able to appreciate that Shri Mishra has gone through the literature and catalogue. We find that the appellant/assessee is able to produce the copy of the invoice and its enclosure, copy of Bill of Entry which were seen by Shri Mishra, there is no reason why the appellant/assessees are not able to produce now the so called literature and catalogue produced before Shri Mishra. They have not produced the same in reply to show cause notice, during the adjudication proceedings or even before this Tribunal. The obvious conclusion is that either no catalogue literature was produced or manipulated catalogue/literature/printout was produced which they found difficult to produce during investigation or adjudication proceeding. We may add that it is a usual practice in the Customs, that if any literature or catalogue is seen by the Appraising Officer or the Asst. Collector, they do initial such catalogue or literature as has been done in this case in respect of enclosure to invoice T002. In the absence of any catalogue/literature, or manipulated catalogue/literature Appraising Officer and the Asst. Collector will have to classify the parts assuming the description of the machine viz. Ventilating and recycling hood written as correct description and that is what appears to have been done in this case. The appellant/assessee have misled the Assessing Officer by indicating incorrect/fraudulent description i.e. ventilating and recycling hoods in the invoice, enclosure to the invoice, Bill of Lading and other connected documents. Once the documents produced at the time of assessment are manipulated, the appellant/assessee cannot take the shelter that the assessments are finalized. The assessments are finalized based upon the information and the details submitted. If the details submitted are manipulated, then the department cannot be stopped on the grounds that the assessments were finalized. Appellants have not gone to assessing officer with clean hands.
8.9 The learned Advocate for the appellant/assessees has also submitted that compressor though parts of air conditioners, the Customs department till date continues to classify under Heading 8414.80. As discussed in the earlier paragraphs compressor is specifically listed under 8414 thus all Gas Compressor, irrespective of its usages would be classified under 8414. Further, 8414.30 covers Compressor of a kind used in refrigerating equipment, 8414.40 covers Air compressors mounted on a wheel chassis for towing and 8414.40 covers all other Gas Compressor. Thus compressor whether used in air conditioners any or other machine will be classifiable under 8414 only. Thus mentioning of parts of air conditioners or any other machine is irrelevant to the classification of compressor (or for that any part specifically mentioned in any entry.
8.10 The learned Advocate has submitted that assessee has a right to avoid duties and the appellant/assessee has done no wrong by asking revised invoices from the foreign supplier. There can be no two opinions that within the frame work of law assessee can minimize their tax liability. However, that is not the case here. The appellant/assessee could have continued to describe the goods imported as parts of air conditioners and explained to the Customs officials with authentic catalogue and literature that room air conditioners consist of compressor and ventilator and recycling hood and thus these parts when assembled would constitute ventilating and recycling hood under Heading 8414.80. In case their claim was correct and the Customs officials would have accepted, then they could have taken the plea that they have done no wrong. The appellant/assessee have gone to the extent of getting bill of lading manipulated, IGM manipulated, invoice manipulated in order to evade duty. Shri V.N. Dhoot, Managing Director of the appellant Company has explained and admitted in detail in his statements recorded under Section 108 of the Customs Act, 1962.
8.11 Another contention taken by the learned Advocate for the appellant/assessee that the allegation of fraud, manipulation etc. are of no relevance as the penalty earlier imposed has been set aside by this Tribunal by Order dated 09.11.2000. We have gone through the judgement of Tribunal and we also note that the Revenue has not appealed against the said order of the Tribunal relating to setting aside the penalty. With great respect to the said bench when the matter relating to confiscation and duty liability itself was remanded and adjudicating authority was to allow cross-examination etc. it would have been more appropriate for the Tribunal to wait for the outcome rather than setting aside the penalty based upon certain observations (for lesser penalty) made by the earlier adjudicating authority. In our view imposing lesser penalty and not imposing penalty are two different things. In our view this is a clear cut case of manipulation, framed to evade the duty.
8.12 We also note that Shri V.N. Dhoot, Managing Director has given statements during investigation. It is seen that the appellant/assessees have now produced a copy of affidavit filed before the Additional District and Sessions Judge, Pune indicating that the said statements were taken under duress. We note that the retraction was not sent to the Investigating Officer or to his immediate superior officer. In fact, even this retraction was not produced after issuance of the show-cause notice or in the first round of litigation. It is only after 19 years the appellant/assessee has produced the said retraction. We have also gone through the said retraction. We do not find any specific details in retraction. We do not know what was incorrect in the earlier statement and why the said retraction was kept secret for 19 years.
8.13 In his statement dated 26.6.1990 Shri V.N. Dhoot has very clearly stated To earn more profit legally on the air conditioners, I thought of cutting down the cost. One way was to save duty. I went through the CCCN and Customs Tariff Act and saw heading and explanatory note of CCCN of Chapter 84.15 and 84.14. I was also advised that CCCN will prevail over CTA in this particular case. I also found that duty on components of air conditioners is very high. And it is higher than the duty on components of ventilating and recycling hood of all types. I thought that it would be better if the goods are declared as components of ventilating and recycling hood instead of component parts of air conditioners. Thereafter, he discussed the matter with the supplier M/s. Yamaha who also agreed to change the description and described the goods as parts of ventilation and recycling hood. Shri Dhoot, in his statement further stated I instructed Mr. Sambhus to present the bill of entry in the Custom House getting the goods classified in any heading other than 84.15. I also asked him to convince Customs and somehow explain to them these are parts can be classified as component parts of ventilation and recycling hood of 84.14. Accordingly, the bill of entry was prepared and the goods cleared. From the said statement it is very clear that the said description was not of the supplier but was given on the insistence of the appellant/assessee with the sole intentions of evading the duty.
8.14 We have also gone through the examination of Shri R.A. Gale, who was General Manager of the District Industries at the relevant time and we also note that the adjudicating authoritys observation how Shri Gale was confused by learned Advocate by not showing the provisional registration certificate of Aurangabad. There were specific restrictions in the SSI certificate at Aurangabad that the import of components will not be allowed and the unit at the relevant time was only at Aurangabad. In view of the said factual position, confiscation under Section 111(d) is correct and accordingly we uphold the same. We also uphold the mis-declaration in the description and confiscation under Section 111(m) of the Customs Act, 1962.
9. The learned Advocate has also quoted few case laws. We have gone through these case laws. These are in different context. Keeping in view our conclusion that the description was manipulated in the assessment and related documents and it is based upon the said manipulated documents that the initial consignment was released, the case laws cited are not applicable.
9.1 In the case of Dunlop India Ltd. (supra) the Honble Supreme Court has held that meaning as understood by people in trade and commerce is to be accepted. It was also held in the case context to the classification where V.P. Latex would be covered as rubber that end use is not important. In the present case the issue involved is whether certain parts imported were parts of air conditioner or parts of ventilating and recycling hood. As the classification itself is linked to the end use, end use of the goods would become important. Moreover, as observed by the Honble Supreme Court, the meaning has to be taken as understood by people in trade and commerce. As explained earlier ventilating and recycling hood are equipment which are used in home, restaurants, laboratories, industrial establishments that is the common understanding of the trade and commerce as also Tariff/HSN. Another case law quoted is of Doyang Tea Estate (supra) wherein the Honble Calcutta High Court has held that knowledge of adjudicator cannot be final words to substitute expert opinion. We have already discussed the so called report from the Department of Mechanical Engineering, Pune and it requires no further explanation. Part of the report which is based upon authoritative literature only supports the case of Revenue. In any case, the facts in the present case are totally different. Similar is the position in respect of facts of the case of Wipro Ltd. (supra). Another case law quoted is that of Penta Media Graphics Ltd. (supra) wherein this Tribunal has held that where the Commissioner read over parties in personal hearing of the expert opinion on highly technology matter and copy not given was held to be violation of principles of natural justice. In the present case no expert opinion has been given by the department what was taken and provided from internet/Google is relating to the common understanding of ventilating and recycling hood and not an expert opinion. Copy of the same has been enclosed in the adjudication order and we find there is no expert detail but a general understanding. We also note that the appellant has not been able to counter the same before the Tribunal. The learned Advocate for the appellant has quoted three case laws to say that no redemption fine can be levied on the goods finally assessed for duty and not available for confiscation. We find in the present case almost all the goods were available and were seized and released on provisional basis on execution of bond. Under these circumstances the three case laws quoted by the learned Advocate are distinguishable. In fact, Honble Supreme Court in the case of Weston Components reported in 2000 (115) ELT 278 (SC) has held that in such circumstances redemption fine imposable.
10. We find that the Revenue has also filed an appeal on the ground that Section 112 of the Customs Act, 1962, which provides that when the goods are liable for confiscation, the person responsible shall be liable to a penalty. While we do agree with plea, we note that the issue of question of penalty was discussed by this Tribunal while remanding the matter and the Revenue had not filed an appeal against the said order of the Tribunal before High Court. Hence, the said order of the Tribunal has attained finality. In view of this fact, the learned Commissioner in the impugned order has correctly not imposed penalty. We therefore dismiss the appeal of the Revenue.
11. In view of the above analysis, both the appeals of the appellant/assessee and the Revenue are dismissed.
(Order Pronounced in open Court on.) (Ashok Jindal) Member (Judicial) (P.K. Jain) Member (Technical) nsk ??
??
??
??
49