Custom, Excise & Service Tax Tribunal
Commissioner Of Customs (Acc & Import), ... vs Aditya Ratan on 7 January, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I Application C/S/716/09 and APPEAL No. C/451/09 (Arising out of Order-in-Appeal No. 22/Mumbai-III/2009 ACC dated 12.02.2009 passed by Commissioner of Customs (Appeals), Mumbai III.) For approval and signature: Honble Mr. P.G. Chacko, Member (Judicial) Honble Mr. Sahab Singh, 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 : Yes 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?
====================================================== Commissioner of Customs (ACC & Import), Mumbai Appellant Vs. Aditya Ratan Respondent Appearance: Shri S.S. Katiyar, SDR, for appellant None for respondent CORAM: Honble Mr. P.G. Chacko, Member (Judicial) Honble Mr. Sahab Singh, Member (Technical) Date of Hearing: 07.01.11 Date of Decision: 07.01.11 ORDER NO
1. In this application, the prayer of the Revenue (appellant) is to stay the operation of the Appellate Commissioners order. There is nobody to oppose this application despite notice. We have examined the records and heard the learned SDR and we have found sufficient reason for a remand of the case to the lower appellate authority. Therefore, after staying operation of the Appellate Commissioners order to the limited extent indicated in the stay application, we take up the appeal for final disposal.
2. The respondent had imported two live dogs, one of which was a female Beagle six years old. The respondent filed a kachha Bill of Entry on 30.1.08 under OGL for clearance of the animals. After inspecting the animals and verifying the No Objection Certificate (NOC) from the competent authority, the proper officer of customs allowed clearance of the dogs on 31.1.08. However, on subsequent verification of import documents, it was noted that the importer did not have Import-Export Code (IEC) and also did not produce Special Import Licence as required under the relevant provisions of the Foreign Trade Policy 2004-09. The importer was asked to offer his explanation, whereupon he stated that it was purely a personal import and hence did not have any invoice and further that the value of Rs 7500/-for each dog should be considered for assessment. The respondent also waived show-cause notice and personal hearing. The Assistant Commissioner of Customs valued the Beagle at Rs 7575/- and the other dog (female Pug of seven years old) at Rs 53,000/- and also held both animals liable to confiscation under Section 111 (d) of the Customs Act in the absence of import licence. Taking a lenient view, the Assistant Commissioner imposed a fine of Rs 12,000/- only in lieu of confiscation and a penalty of Rs 5000/- only. The Assistant Commissioners order was reviewed by the jurisdictional Commissioner on the valuation issue. Accordingly, an appeal was filed with the Commissioner (Appeals). The learned Commissioner (Appeals) upheld the valuation done by the Assistant Commissioner for the reason stated in para 5 of the impugned order. The appellate authority also ordered for refund of the amounts of fine and penalty which had been paid by the importer at the time of clearing the animals. In the present appeal of the Revenue, the only grievance raised by the appellant is that the learned Commissioner (Appeals) traveled beyond his jurisdiction to order refund of fine and penalty to the importer.
3. Reiterating the above ground of the appeal, the learned SDR submits that the Assistant Commissioners order confiscating the animals under Section 111 (d) of the Customs Act, imposing fine of Rs 12,000/- in lieu of such confiscation and imposing a penalty of Rs 5000/- was not challenged by the party and that the said decision of the Assistant Commissioner attained finality in due course of time. The learned Commissioner (Appeals) had no jurisdiction to reopen an issue which stood finally settled at the original level.
4. We have found a valid point in the submission of the learned SDR. We have also found that, at this stage, there is no surviving valuation dispute. The only question is whether it was open to the Commissioner (Appeals) to order for refund of fine and penalty to the importer. The only answer to this question would be in the negative. As rightly pointed out by the learned SDR, the Assistant Commissioners order relating to confiscation, redemption fine and penalty was not challenged by the importer and hence the same was not liable to be interfered with by the Commissioner (Appeals) in an appeal filed by the Revenue. We, therefore, set aside the impugned order and allow the appeal.
(Pronounced in Court) (Sahab Singh) Member (Technical) (P.G. Chacko) Member (Judicial) rk 1 4