Custom, Excise & Service Tax Tribunal
25) Commissioner Of Customs(Prev.), ... vs ) M/S.Gold International on 28 November, 2017
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Miscellaneous Application Nos.C/MA(COD)/75797 & 76080/17
1-35) Appeal Nos.C/76831, 76905, 76968, 76988/16, 75890, 75891, 76131, 76132, 76134, 76157, 76158, 76159, 76295, 76296, 76297, 76351, 76352, 76353, 76354, 76355, 76356, 76357, 76358, 76359/17, C/77054/16
C/76786/16, 76373, 76495, 76496, 76498, 76499, 76500, 76501, 76811, 76502/17
AND
Cross Objection Nos.C/CO/75902, 75900, 75901/17
(Arising out of Order-in-Original No.
1) 16/CUS/CCP/WB/2016 dated 28.07.2016
2) 19/CUS/CCP/WB/2016 dated 29.08.2016
3) 22/CUS/CCP/WB/2016 dated 06.09.2016
4) 23/CUS/CCP/WB/2016 dated 06.09.2016
5) 39/CUS/CCP/WB/2016 dated 27.02.2017
6) 40/CUS/CCP/WB/2016 dated 27.02.2017
7) 06/CUS/CCP/WB/2016 dated 31.03.2017
8) 44/CUS/CCP/WB/2016 dated 28.03.2017
9) 47/CUS/CCP/WB/2016 dated 31.03.2017
10) 08/CUS/CCP/WB/2016 dated 26.04.2017
11) 05/CUS/CCP/WB/2016 dated 26.04.2017
12) 45/CUS/CCP/WB/2016 dated 28.03.2017
13) 02/CUS/CCP/WB/2016 dated 12.04.2017
14) 01/CUS/CCP/WB/2016 dated 12.04.2017
15) 10/CUS/CCP/WB/2016 dated 26.04.2017
16) 11/CUS/CCP/WB/2016 dated 26.04.2017
17) 18/CUS/CCP/WB/2016 dated 23.05.2017
18) 09/CUS/CCP/WB/2016 dated 26.04.2017
19) 07/CUS/CCP/WB/2016 dated 26.04.2017
20) 16/CUS/CCP/WB/2016 dated 16.05.2017
21) 14/CUS/CCP/WB/2016 dated 09.05.2017
22) 15/CUS/CCP/WB/2016 dated 15.05.2017
23) 13/CUS/CCP/WB/2016 dated 09.05.2017
24) 12/CUS/CCP/WB/2016 dated 09.05.2017
25) 18/CUS/CCP/WB/2016 dated 18.08.2016
26) 16/CUS/CCP/WB/2016 dated 28.07.2016
27) 07/CUS/CCP/WB/2016 dated 26.04.2017
28) 09/CUS/CCP/WB/2016 dated 26.04.2017
29) 10/CUS/CCP/WB/2016 dated 26.04.2017
30) 13/CUS/CCP/WB/2016 dated 09.05.2017
31) 15/CUS/CCP/WB/2016 dated 15.05.2017
32) 16/CUS/CCP/WB/2016 dated 16.05.2017
33) 18/CUS/CCP/WB/2016 dated 23.05.2017
34) 47/CUS/CCP/WB/2016 dated 31.03.2017
35) 12/CUS/CCP/WB/2016 dated 09.05.2017
all passed by the Commissioner of Customs(Prev.), W.B., Kolkata .)
1-25) Commissioner of Customs(Prev.), W.B., Kolkata
26) M/s. Gold International
27) M/s.Sweta Trading
28) Shri Bimal Kumar Modi
29) Shri Rana Mitra
30,31) M/s.Baba Traders
32-33) M/s.Bajrang Expo
34) Mayur Enterprise
35) Ramji Traders
Applicant (s)/Appellant (s)
Vs.
1) M/s.Gold International
2) M/s.Supari Trading Corporation
3) M/s.Bhawani Metal Corporation
4) M/s.Angel International
5) M/s.Sherowali Vinijya Pvt.Ltd.
6) M/s.Sandeep International
7) M/s.Opel Trade Corporation
8) M/s.G.E. Corporation
9) M/s.Mayur Enterprise
10) M/s.Shardha Traders
11) M/s.Sukanya Traders
12) M/s.Ramji Traders
13,14) M/s.Balaji Multiplex Pvt.Ltd.
15) M/s.Ramji Traders
16) M/s.R.G. Overseas
17) M/s.Bajrang Expo
18) M/s.Empire Exports
19) M/s.Sweta Trading
20) M/s.Bajrang Expo
21) M/s.Sandeep International
22-24) M/s.Baba Traders
25) M/s.Savitri Sales Pvt.Ltd.
26-35) Commissioner of Customs(Prev.), W.B., Kolkata
Respondent (s)
Appearance:
Shri S.K.Naskar, S.N.Mitra, ACs(AR) for the Revenue S/Shri Arijit Chakraborty, M.A.Akhtar, Miss D.Parbat, Advocates and S.C.Ratho, B.Singh & R.N.Bandopadhyay, Consultants for the Respondent (s) CORAM:
HONBLE SHRI JUSTICE (DR.) SATISH CHANDRA, PRESIDENT HONBLE SHRI V.PADMANABHAN, MEMBER(TECHNICAL) Date of Hearing/Decision :- 28.11.2017 ORDER NO.FO/A/78114-78148/2017 Per Shri Justice (Dr.) Satish Chandra.
All the appeals have been filed by the department against different Orders-in-Original of different dates.
2. The assesses have also filed Cross Objections in some cases and in remaining cases cross appeals have been filed. The issue in all the appeals is identical. Hence, all the appeals are disposed of for the sake of convenience. Delay in filing appeals is allowed for reasons mentioned in the COD applications.
3. Briefly stated the facts of the case are that the assesses have imported betel nuts from Bangladesh at the declared value of Rs.55.93 to Rs.56.07 per kg.. In terms of Notification No.10 & 12(RE-2013)/2009-2014 issued by the Directorate General of Foreign Trade(DGFT), the betel nuts below the CIF value of Rs.110/- per kg. cannot be imported. The authorities below entertained a view that inasmuch as the value of the betel nuts in question was below Rs.110/- per kg., their import was hit by the Notifications in question. However, the authorities allowed the betel nuts to be cleared on payment of duty, but confiscated the same in terms of the provisions of section 111(d) of the Customs Act, 1962 with an option to the appellant to redeem the same on payment of redemption fine. The duty was calculated on the basis of tariff value fixed by the CBEC vide Notification No.93/2013-CUS(NT) dated 30.08.2013. By fixing the less redemption fine and also the lower penalty, the department has filed the present appeals.
4. On the other hand, the assesses are claiming that confiscation was not valid in law. So, there is no question of redemption fine or penalty. So they filed Cross Objection as well as appeals in some cases.
5. With this background we have heard S/Shri S.K.Naskar, S.N.Mitra, Arijit Chakraborty, M.A.Akhtar, Miss D.Parbat, S.C.Ratho, B.Singh, R.N.Bandopadhyay, ld.Counsels for the parties.
6. After hearing both sides and on perusal of record, it appears that the question whether the betel nuts are liable for confiscation by declaring value which were lesser than the price fixed by the DGFT in the Notification, came up before the Hyderabad Bench of this Tribunal in the case of International Seaport Dredging Ltd. v. C.C. & S.T., Visakhapatnam [2016 (342) E.L.T. 123 (Tri.-Hyd.)]. The Tribunal took the view that inasmuch as the goods were cleared after collecting duty on the basis of the tariff value, it cannot be held that the goods are prohibited. The Tribunal observed that :-
6. In the instant case there is no prohibition in force? against import of the vehicles. There is only restriction in Import Licensing Notes of Chapter 87 of Import Export Policy, 2004-2009, that importation of new vehicles shall be permitted only through specified Customs Port at Nhava Sheva, Kolkata, Chennai, ICD-Tuglakhabad, Delhi Air Cargo and Mumbai Port. Other conditions of import are also specified in the said licensing notes. However, there is no prohibition on their importation. By any stretch of imagination, the word restriction cannot be equated or read as prohibition. This being so, invocation of Section 111(d) is not in order. Possibly one or more of the situations attracting confiscation as listed out in Section 111(a) to (p) may well have been applicable to the facts of this case, but definitely not Section 111(d). In the event the goods are not liable for confiscation under Section 111(d) and by implication the invocation of Section 112(a) and Section 125 are also not sustainable. We, therefore, have no hesitation in setting aside the impugned order to the extent of confiscation of the goods under Section 111(d), imposition of redemption fine under Section 125 and imposition of penalty under Section 112(a) of the Act ibid.
7. By following the above order of the Tribunal we find that even in the present batch of cases before us, the betel nuts which were imported by declaring prices which were lesser than the minimum import price specified by the DGFT cannot be held as import of prohibited goods. Consequently, the confiscation of the goods is set aside along with the order for payment of redemption fine and penalty. However, the duty paid as per the tariff value is upheld. All the appeals and Cross Objections are disposed of in the above terms.
(Dictated and pronounced in the open court.) Sd/ sd/ (V.Padmanabhan) (Justice Dr. Satish Chandra) Member(Technical) President sm 5 Appeal Nos. C/76831, 76905, 76968, 76988/16, 75890, 75891, 76131, 76132, 76134, 76157, 76158, 76159, 76295, 76296, 76297, 76351, 76352, 76353, 76354, 76355, 76356, 76357, 76358, 76359/17, C/77054/16 C/76786/16, 76373, 76495, 76496, 76498, 76499, 76500, 76501, 76811, 76502/17