Custom, Excise & Service Tax Tribunal
The Commissioner Of Customs & Central ... vs M/S. Nitin Digital Printers on 16 September, 2011
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench - Single Member Bench
Court - I
Date of Hearing: 16.09.2011
Date of decision: 16.09.2011
Appeal No. C/362/2010
(Arising out of Order-in-Appeal No. 91/2009 (H-II) Cus. dated 23.11.2009 passed by the Commissioner of Customs, Central Excise & Service Tax, Hyderabad)
For approval and signature:
Honble Mr. M. Veeraiyan, Member (Technical)
1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
Yes
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3. Whether their Lordship wish to see the fair copy of the Order?
Seen
4. Whether Order is to be circulated to the Departmental authorities? Yes
The Commissioner of Customs & Central Excise
Hyderabad ..Appellant(s)
Vs.
M/s. Nitin Digital Printers Respondent(s)
Appearance Mr. R.K. Singla, JCDR, for the revenue None for the respondent Coram:
Honble Mr. M. Veeraiyan, Member (Technical) FINAL ORDER No._______________________2011 Per: M. Veeraiyan, This is an appeal against the order of the Commissioner (Appeals) No. 91/2009 (H-II) Cus. dated 23.11.2009
2. Heard the learned Joint CDR who reiterates the grounds of appeal. None present for the respondent in spite of notice.
3. The respondent imported 126 Nos. of used photocopiers. They declared assessable value of USD 30,075 equivalent to Rs. 15,12,444/-. The goods were got examined by a chartered engineer who opined that the machines were 8 to 9 years old. The value declared was enhanced to Rs. 17,07,524/- by the original authority. He ordered confiscation of the goods for want of requisite licence for importing second hand photocopiers but allowed the same to be redeemed on payment of fine of Rs. 5,00,000/- and imposed penalty of Rs. 3,00,000/-. Commissioner (Appeals) upheld the order of confiscation. However taking into consideration the ratios of orders of the CESTAT and taking the facts and circumstances of the case into account, he reduced the redemption fine to Rs. 2,00,000/- and penalty to Rs. 1,00,000/-.
4. In the grounds of appeal, it has been mentioned that the respondent has imported the goods for second time and therefore the redemption fine and penalty should be raised to the level fixed by the original authority. It has also been pointed out that imposition of fine and penalty should depend on market value of the goods imported, margin of profit estimated to be earned by the importer on sale of these goods. It has also been submitted that no two cases of import of second hand goods could be same.
5. While the general observations in the grounds of appeal are very much relevant, the grounds of appeal do not contain any reference to market value determined or margin of profit ascertained. The Commissioner (Appeals), taking into account the entire facts and circumstances of the case, used his discretion and reduced the redemption fine from Rs. 5,00,000/- to Rs. 2,00,000/- and penalty from Rs. 3,00,000/- to Rs. 1,00,000/-. It has not been stated that the said decision is in any way arbitrary. In the light of the finding of the chartered engineer that the machines are 7 to 8 years old and his findings on the residuary life, the reduction in redemption fine and penalty cannot be considered to be arbitrary. The Commissioner (Appeals) has upheld the confiscation and has merely shown some leniency in the quantum of redemption fine and penalty taking the entire facts and circumstances into account. Therefore, we hold that no valid reasons have been adduced to interfere with the order of the Commissioner (Appeals).
6. The appeal by the department is rejected.
(Pronounced & dictated in open Court)
(M. VEERAIYAN) MEMBER (TECHNICAL)
iss