Customs, Excise and Gold Tribunal - Tamil Nadu
Jupiter Exports, M.R. Exports, ... vs Commissioner Of Customs, Chennai And ... on 11 October, 2001
Equivalent citations: 2002(145)ELT608(TRI-CHENNAI)
JUDGMENT
Jeet Ram Kait
1. In all these appeals, common question of law and facts and involved, hence they are taken up together for disposal, as per law.
2. The above appellants are aggrieved by the order passed by the Chief Commissioner of Customs on the ground that the value has been determined under Rule 5 of the Customs Valuation Rules 1988 and since the goods are covered under Open General Licence (OGL), the consideration under Section 111(d) and (m) of the Customs Act read with Section 3(3) of Foreign Trade (Development & Regulation) Act 1992 is not proper. They have also stated that since the goods are covered under OGL, the order for confiscation and imposing of Redemption Fine in lieu of confiscation is also not proper. They argued that they cannot also be imposed with penalty as the dried garlic is falling under the Open General Licence. In this connection, they have relied on the judgment rendered by this bench in the case of Mahendra Kumar Co. v. CC Trichy vide final order No. 1497/2000 and Stay order No. 900/2000 dated 25.10.2000 in which it has been held that the issue is covered by the decision of J.B. Impex and Ors. vide Western Zonal Bench Order No. C-II/2562-67/WRB/2000 dated 18.9.2000.
3. Ld. Counsel S/Shri S. Murugappan and A.K. Jayraj, appearing on behalf of all the appellants while reiterating the submissions made in their appeal memo have invited out attention to the judgment rendered by this bench in the case of Mahendra Kumar Co. v. CC Trichy and the judgment rendered by the Western Region Bench in the case of J.B. Impex and Ors. v. CC vide their order No. C-II/2562-67/WRB/2000 dated 18.9.2000 which has dealt at length the whole policy and the uses and treatment of dried garlic in the common parlance as understood by the trade. They have also drawn our attention to the judgment rendered by the Bangalore Bench in the matter of Pallipadan Enterprises v. CC Cochin. In all the judgments, it has been held that dried garlic is classifiable under ITC Sub Heading No. 071290.04 and not under 070320.00 as alleged by the department taking into account the moisture content of the goods on the basis of DGFT clarification dated 17.9.99. By virtue of above clarification, goods covered under OGL as such are not liable for confiscation under and value has to be determined under Section 14 of the Customs Act 1962.
4. As regards valuation, they submitted that the enhancement of value is done solely on the basis of similar goods imported at the nearest Port disregarding other material evidence on record, therefore the cases have to be remanded for reconsideration and value has to be determined under Section 14 of the Customs Act 1962.
5. Heard Ld. DR Shri A. Jauyachandran who stated that the imported item should fall under heading 0703.20.00. The clarification issued by the DGFT is prospectively, i.e. w.e.f. 17.9.99 and all imports prior to this dated containing even 10% moisture should be classified under 0703.20.00 only because in the absence of any clarification, dried means it should be 100% and not even 1% moisture content should be there.
6. In counter, the Ld. Advocate Shri Murugappan and Jayaraj submitted that even in the order, the Chief Commissioner has not held that dried means it should be 100% dried and DR's submission is beyond the findings held by the lower authority.
7. We have carefully considered the submission made by both sides and have come to the conclusion that dried garlic is classifiable under ITC Sub Heading No. 071290.04 and not under 070320.00 as alleged by the department, taking into account the moisture content of the goods on the basis of DGFT'S clarification dated 17.9.99. Since by virtue of above classification, goods covered are under OGL, and even otherwise, in the common parlance, they are covered under OGL and are not liable for confiscation under Section 111(d) of the Customs Act 1962 and therefore, no Redemption Fine is imposable and no penalty could also be levied on them. As regards the enhancement of value, the same has to be done as per the settled position of law; if there is any contemporaneous imports, it should be on that basis and not solely on the basis of similar goods imported at the nearest Port disregarding other material evidences on record. Therefore, for the purpose of valuation, all these cases are remanded for reconsideration to the lower authority who would taken into consideration the various judgments cited on valuation. Thus the appeals are allowed by way of remand.
8. Since all these are batch matters and a lot of amount is involved besides the bank guarantees are pending, the appellants have requested that the lower authority should be asked to decide all these batch matters expeditiously, preferably within 3 months from the date of receipt of this order. The appellants shall also be given an opportunity of personal hearing and also to produce evidences and citations in their defence during the course of the personal hearing. Order accordingly.
(Dictated and Pronounced in open Court)