Custom, Excise & Service Tax Tribunal
M/S. Universal Traders vs Commissioner Of Customs (Export) ... on 27 February, 2008
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO APPEAL NO. C/247/07 (Arising out of Denovo Order No. CC_(MKG)22/2006ADJ ACC dt.2.1.2007 passed by Commissioner of Customs (Export), Mumbai. For approval and signature: Hon'ble Shri M. V. Ravindran, Member (Judicial) ============================================================
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 Their Lordships wish to see the fair copy : of the Order? 4. Whether Order is to be circulated to the Departmental : authorities? ============================================================= M/s. Universal Traders : Appellant VS Commissioner of Customs (Export) Mumbai Respondent Appearance Shri S.N. Kantawala, Advocate Shri Brijesh Pathak, Advocate for Appellant Shri D.P. Mukhopadhya, Authorized Representative (JDR) CORAM: Shri M. V. Ravindran, Member (Judicial) Date of decision 27/2/08 ORDER NO.................................................... Per : Shri M. V. Ravindran, Member (Judicial)
This appeal is filed by the appellant against the Denovo Order No.CC-(MKG) 22/2006 ADJ ACC dt. 2.1.2007of the Ld. Commissioner.
2. This is second round of litigation and in the first round of litigation, the adjudicating authority had absolutely confiscated the Sandalwood oil. The majority decision has set aside the absolute confiscation and directed the adjudicating authority to quantify redemption fine. No other issue arises in this case.
3. The Ld. Counsel appearing on behalf of the appellant submits that the Ld. Adjudicating authority has erred in fixing the redemption fine of Rs. 5 lakhs. It is his submission that the partner of the firm, appeared before the adjudicating authority and contended that the goods, were seized in 2003, therefore the value has depreciated and would not be more than Rs.7 lakhs to Rs. 8 lakhs. It is his submission that the said contention had been accepted by the Ld. Commissioner. It is his further submission that if the market value of the consignment would not be more than Rs.7 lakhs to Rs.8 lakhs, hence redemption fine of Rs. 5 lakhs as imposed is very excessive.
4. The Ld. JDR on the other hand would contend that the export of Sandalwood oil requires special licence the Ld. Commissioner has not given any findings that the value is accepted. It is his submission that despite this the imposition of redemption fine of Rs. 5 lakhs is justifiable as the value of the consignment at the time of seizure of Rs.25.0 lakhs, and there was mis-declaration hence matter be remanded back to lower authorities.
5. The Ld. Counsel submits that the appeal is filed by the appellant, hence there is no need to remanding the matter back to the lower authority, despite the fact that the Ld. JDR have been fair enough to point out anomaly in the order.
6. Considered the submissions made by both sides and perused the records. It is undisputed fact that in the earlier round of litigation, it was held that there was misdeclaration of the value of the consignment and the said question of mis-declaration is not in dispute and the penalties imposed on the appellant as well as other individuals were upheld. I find from the majority order, the matter was remanded back of adjudicating authority who held as under:-
"I have carefully gone through the records of this case as well as submissions of Mrs. Naseem Mehmood Patni, proprietor of M/s. Universal Traders. The only question to be decided in this case as per Tribunal's order is fixation of the quantum of redemption fine in respect of confiscated goods. I find that as per the show cause notice, the value of the consignment in question was Rs.25,23,750/- (LMV). Section 125(1) of the Customs Act, 1962 provides as below:-
"Whenever confiscation on any goods is authorized by this Act, the officer adjudicating it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods (or where such owner is not known, the person from whose possession or custody such goods have been seized) an option to pay in lieu of confiscation such fine as the said officer thinks fit:
Provided that, without prejudice to the provisions of the proviso to subsection (2) of Section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon".
From the above, it is clear that fine in lieu of confiscation cannot exceed the market price. The goods were seized in September, 2003. The Proprietor of M/s. universal Traders has stated that she would not be able to get Rs. 7-8 lakhs and further the value of the goods had depreciated.
Taking into consideration various aspects. I fix the fine in lieu of confiscation at Rs. 5,00,000/- (Rs. Five lakhs only)".
It can be seen from the above reproduced portion of the order of adjudicating authority that he has correctly highlighted the limited question for which the matter was remanded, it can be also noted from the above reproduced portion that Ld. Commissioner, has accepted the fact that the fine in lieu of confiscation cannot exceed the market price. It is also seen that the submission of the Proprietor of the appellant was accepted by the adjudicating authority as there are no finding as to why the value of goods as claimed by appellant is incorrect. In the absence of any findings, it would be read that the adjudicating authority has accepted the market value of Rs.7lakhs to Rs. 8 lakhs as was claimed before him. If it is so, then the imposition of redemption fine of Rs. 5 lakhs is definitely excessive.
7. Considering the entire issue in its totality, noting the facts that the said consignment was seized in 2003, and there could be depreciation in the value of goods over the period, to meet the ends of justice, redemption fine needs to be reduced. Redemption fine is fixed at Rs. 50,000/- instead of Rs. 5.0 lakhs.
8. Subject to such modification, the appeal filed the appellant is disposed off.
(M. V. Ravindran) Member (Judicial) Sm 4