Custom, Excise & Service Tax Tribunal
(I) Shree Marble Impex Pvt. Ltd vs Commissioner Of Customs (Prev.), W.B on 14 August, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
EAST REGIONAL BENCH : KOLKATA
Cus. Appeal Nos.248-250/07
Arising out of O/O No.19/Cus/CC(P)/WB/2007 dated 31.07.2007 passed by Commr. of Customs (Prev.), W.B., Kolkata.
For approval and signature:
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER
DR. I. P. LAL, HONBLE TECHNICAL MEMBER
1. Whether Press Reporters may be allowed to see
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 His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
(i) Shree Marble Impex Pvt. Ltd.
(ii) Shri Pradip Agarwal
(iii) Shri Mahabir Prasad Agarwal
APPELLANT(S)
VERSUS
Commissioner of Customs (Prev.), W.B.
RESPONDENT (S)
APPEARANCE Shri B. N. Chattopadhyay, Consultant & Shri N. K. Chowdhury, Advocate for the Appellant (s) Shri A. K. Das, Spl. Counsel for the Department CORAM:
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER DR. I. P. LAL, HONBLE TECHNICAL MEMBER DATE OF HEARING : 14. 08. 2014 DATE OF PRONOUNCEMENT : 28. 10. 2014 ORDER NO.FO/A/75591-75593/2014 Per Dr. I. P. Lal :
Heard both sides.
2. These Appeals are filed against the Order-in-Original No. 19/Cus/CC(P)/WB/2007 dated 31.07.2007 passed by Commr. of Customs (Prev.), W.B., Kolkata.
3. Briefly stated the facts of the case are that the assessee had imported marble slabs from M/s Shree Balaji Industries, Nepal under seven Bills of Entry, namely, 199/04 dt.12.01.2004, 6/04 dt.01.01.2004, 5144/03 dt. 26.12.2003, 4216/03 dated 06.11.2003, 4166/03 dt.03.11.2003, 4165/03 dt. 03.11.2003 & 4047/03 dated 23.10.2003, valued at Rs.27,60,962/- declaring the said goods as Polished Marble Slabs from Nepal and availed full exemption from Basic Excise Duty and SAD under Notification 85/98-Cus dated 05.11.98 as amended by Notification No.41/2002-Cus dated 12.04.2002 and Notification No.40/2002-Cus dated 12.04.2002. Acting on the intelligence that the said assessee is engaged in importing the rough marble of third country origin from Nepal in the guise of Polished Marble Slabs and wrongly availing the benefit of the above Notifications, the Officers of the DRI visited the godown of the said assessee on 05.02.2004. On visible inspection, the impugned goods appeared to be rough marbles and un-polished classifiable under Chapter Sub-heading 25151220 and not cut and polished slabs under Chapter Tariff Heading 68.02 as classified by the assessee. The goods appeared to be under-valued. Shri Pradip Agarwal, during the course of investigation, through his letter dated 10.03.2004, 08.04.2004, 12.04.2004, addressed to the DRI Officer, accepted that they have imported Polished Marble Slabs of third country origin from Nepal, that no manufacturing was undertaken in Nepal and admitted to pay the differential duty. Accordingly, a show-cause notice dated 07.05.2004 was issued to the Appellants proposing confiscation of the goods, demanding differential duty along with interest and imposition of penalty. The show-cause notice was adjudicated by the ld. Commissioner. By the impugned order, the ld. Commissioner confiscated the seized goods lying at the godown of the importer and gave an option to the importer to redeem the said goods on payment of fine of Rs.8.00 lakhs. The value of the goods was enhanced. The differential duty of Rs.12,31,655/- was confirmed after denying the benefit of Notification No.40/02-Cus dated 12.04.2002 and 41/02-Cus dated 12.04.2002 (cited supra). He imposed penalty of Rs.5.00 lakh on Shree Marble Impex Pvt. Ltd., i.e., the Importer and penalty of Rs.3.00 lakhs each, on Shri Pradeep Agarwal and Shri Mahabir Prasad Agarwal. Being aggrieved with this Order, the Appellants have filed the present Appeals to this Forum.
4. Ld. Consultant appearing for the Appellants, submitted that the Appellants in this case had submitted all the necessary documents, inter-alia :
(i) Process flow chart of marble slabs ,
(ii) Cost sheet for marble slabs ,
(iii) Certificate from the Federation of Nepalese Chambers of Commerce and Industry to the effect that the goods Exported from Nepal were polished marble slabs,
(iv) Documents towards import of rough marble blocks from Senai International, Egypt to prove that the rough marble Blocks were imported by the manufacturer-supplier of Nepal which were processed and polished before import,
(v) The Certificate of Exports showing that the manufacturing process undertaken in Nepal had been described as converting of rough marble blocks into Polished marble slabs, which conclusively proved to the fact that the third country origin goods, namely, rough marble blocks imported by the supplier, M/s Balaji Industries, Nepal, were manufactured in the factory premises of the exporter of Nepal and therefore, the Assessee had correctly availed the benefit of Customs Notification No.40/2002-Cus dated 12.04.2002 and Notification No.85/98-Cus dated 05.11.98 as amended by Notification No.41/2002-Cus dated 12.04.2002. He submits that the value was enhanced on DOV Data without supplying them copies of relevant Bills of Entry showing grade and quality. The ld. Consultant submitted that in the present case, the goods were neither seized nor detained and therefore, the said goods are not liable for confiscation. He further submitted that the Board vide its Circular No.112/2003-Cus dated 31.12.2003, has categorically stated that the Certificates from His Majestys Government of Nepal and the Government of India cannot be discarded without proper enquiry in the manufacturing premises at Nepal. It is his contention that neither any such enquiry was made nor the samples got tested/trade opinion obtained. He submitted that merely on the basis of the letter written by one of the Director of the Importing Firm that the imported goods are polished marble slabs, is not established especially when the said Director in his three consecutive statements dated 05.02.2004, 06.02.2004 and 12.02.2004, categorically denied to have imported any polished marble slabs in the above seven consignments from Nepal via Panitanki, L. C. S.. It is his submission that that the impugned letters were got written in the Office of the DRI as dictated by the DRI Officials and therefore, they were not having any evidential value.
5. Per contra, the ld. Spl.Counsel appearing for the Revenue, submitted that the imported goods were polished marble slabs as per statements of Shri Pradeep Agarwal in the form of letters. He submits that there is no evidence that these letters were written at the instance of the Officers of the DRI inasmuch as they were of different dates ; the last one was after a gap of one month from the date, on which, the previous letter was written. He submitted that the statements are erratic and grammatically wrong and there was no retraction ; it was so contended only in the reply dated 29.10.2004 to the show-cause notice. It is evident from the above facts that the impugned letters of Shri Pradeep Agarwal were not dictated by the DRI Officials rather the Appellants had accepted the charges. He submits that in the above letters, the Appellants had admitted/accepted the fact that the impugned goods were rough marbles and the value was also under-valued. The ld.Spl.Counsel also submitted that it is general principle of law that what is admittied need not be proved, as has been held by the Honble Supreme Court in the case of Commissioner of Central Excise, Madras Vs. Systems & Components Pvt. Ltd. : 2004 (165) ELT 136 (SC).
6.1 We find that the issue involved in the present case is whether the imported goods were polished marbles, arising out of manufacturing process undertaken in the factory premises of the exporter in Nepal or the rough marbles. The ld.Commissioner has arrived on the conclusion that the imported goods were the rough marbles blocks and were not manufactured in the factory in Nepal and therefore, the imported goods were not eligible for benefit of Notification No.40/2002-Cus and 41/2002-Cus both dated 12.04.2002. While holding so, he mainly relied on the letters of Shri Pradeep Agarwal, one of the Director of the Importing Firm accepting that the imported goods were not the polished marbles and that he agreed to pay the differential duty. The ld. Commissioner also observed that the Exports Certificate did not mention the details of the manufacturing to arrive as to whether the imported goods of third country origin were actually manufactured in Nepal.
6.2 The ld.Consultant has produced the impugned Exports Certificate before this Bench, which shows that the manufacturing activity conducted in the factory in Nepal consists of converting rough marble blocks into polished output. It is submitted that a detail flow chart of the manufacturing process was also submitted to the Assessing Authority. It is not coming out from the order of the ld.Commissioner that whether the enquiry envisages under Boards Circular No.112/2003-Cus dt.31.12.2003 was conducted in this case before challenging the veracity of the Export Certificates produced by the Appellant.
6.3 There is no findings of the ld.Commissioner as to whether any samples were drawn and was got tested or any Trade opinion was obtained.
6.4 While the ld.Commissioner has confiscated the seized goods and imposed redemption fine of Rs.8.00 lakhs to redeem the said seized goods, according to the ld.Consultant, no seizure of goods was effected in this case. The ld.Spl.Counsel, however, could not rebut the Appellants contention that in the present case, the goods were not seized by producing any Panchanama of the seizure memo.
6.5 It is the contention of the ld.Consultant that the value was enhanced on the basis of DOV Data, but copies of the impugned Bills of Entry were not given to them to ascertain whether the goods imported in the said DOV Data, were of the same grade and quality as in the present case. Likewise, it is his submission that as the imported goods were the polished marbles slabs of 15 mm thickness, they were correctly classified by the Importer under Chapter Sub-heading 68.02.
6.6 We find that the order of the ld.Commissioner has not given his findings on the various issues raised and discussed above and therefore, the same is non-speaking order and accordingly, we are of the opinion that the matter should be remitted back to the ld.Adjudicating Authority for fresh adjudication after giving his categorical findings on each of the issues raised above. It is made clear that an adequate opportunity of hearing should be granted to the Appellants and copy of the test memo/trade opinion, the seizure memo and any other relied upon documents should be furnished to the Appellants before deciding their case. All issues are kept open and both sides are at liberty to produce evidences in their support.
7. In the results, all the Appeals are allowed by way of remand.
( Pronounced in the open Court 28.10.2014)
Sd/ Sd/
(DR. D. M. MISRA) (DR. I. P. LAL)
MEMBER (JUDICIAL) MEMBER (TECHNICAL)
mm
8
Cus. Appeal Nos.248-250/07