Custom, Excise & Service Tax Tribunal
Dharti Darshan Marble Pvt Ltd vs Kandla on 24 January, 2020
CUSTOMS,EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST ZONAL BENCH : AHMEDABAD
REGIONAL BENCH : COURT NO - 3
Customs Appeal No. 91 of 2011-DB
(Arising out of OIA No. 429-431/2010/CUS/COMMR-A-/KDL dated 29.11.2010 passed by
Commissioner ( Appeals ) Commissioner of Customs Kandla)
Dharti Darshan Marble Pvt Ltd ...Appellant
Village-tanvan, Post-amet,
RAJSAMAND
RAJASTHAN
-Versus-
C.C.-Kandla ...Respondent
CUSTOM HOUSE, NEAR BALAJI TEMPLE, KANDALA GUJARAT AND Customs Appeal No. 92 of 2011-DB (Arising out of OIA No. 429-431/2010/CUS/COMMR-A-/KDL dated 29.11.2010 passed by Commissioner (Appeals) Commissioner of Customs Kandla) Dharti Darshan Marble Pvt Ltd ...Appellant Village-tanvan, Post-amet, RAJSAMAND RAJASTHAN
-Versus-
C.C.-Kandla ...Respondent
CUSTOM HOUSE,
NEAR BALAJI TEMPLE,
KANDALA
GUJARAT
WITH
Customs Appeal No. 93 of 2011-DB
(Arising out of OIA No. 429-431/2010/CUS/COMMR-A-/KDL dated 29.11.2010 passed by Commissioner (Appeals) Commissioner of Customs Kandla) Dharti Darshan Marble Pvt Ltd ...Appellant Village-tanvan, Post-amet, RAJSAMAND RAJASTHAN
-Versus-
C.C.-Kandla ...Respondent CUSTOM HOUSE, NEAR BALAJI TEMPLE, KANDALA GUJARAT Present For the Appellant : None
Present For the Respondent : Shri S.K.Shukla, Authorised Representative CORAM:
HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR HON'BLE MEMBER (TECHNICAL), MR. RAJU FINAL ORDER NO. A/10251-10253 / 2020 Date of Hearing: 26/09/2019 Date of Decision: 24/01/2020 RAMESH NAIR The brief facts of the case are that the appellant have filed Bills of Entry for clearance of Rough Marble Blocks. The appeal wise details are as under:
2 C/91-93/2011-DB Appeal Bills of Quantity Value of Declared Redemption Penalty No. Entry no. Goods Price Fine C/91/2011 149834 202.900MTS Rs. USD Rs. Rs.
dated 23,05,953/- 241.22 2,00,000/- 40,000/-
16.03.2010 CIF C/92/2011 149833 101.400MTS Rs. USD Rs. Rs.
dated 13,03,704/- 241.22 1,00,000/- 20,000/-
16.03.2010 CIF C/93/2011 149835 97.900 MTS Rs. USD Rs. Rs.
dated 11,54,605/- 250.31 1,00,000/- 20,000/-
16.03.2010 CIF The appellant at the time of clearance waived the Show Cause Notice and personal hearing. The Adjudicating Authority passed the Adjudication order where the value of the goods was increased from declared price as mentioned above to USD 275 per MT CIF as per policy circular no. 13 (RE-08)/2004-09 dated 30/06/2008. The enhancement of the value was also decided on the basis of contemporaneous import wherein the import was made at the rate of USD 275 CIF. It was also held that since the floor price is fixed at USD 275 per MT CIF as per policy circular dated 30/06/2008 for import made below such price, i.e. at USD 241.22/250.31 per MT CIF, the appellant was required to obtain specific authorization. Therefore, non compliance of policy circular made the goods liable for confiscation. Accordingly, the Adjudicating Authority confiscated the goods with option to redeem the same on payment of redemption fine under section 125 ibid. Penalties as mentioned above were also imposed under section 112(a) of Customs Act, 1962. The value of goods was enhanced at the rate of USD 275 MT CIF under the Rule 4 of Customs (Valuation for determination of price of imported goods) Rules, 2007. Being aggrieved by the adjudication order, the appellant filed appeal before the Commissioner (Appeal) who has not interfered with the reason given by the Adjudicating Authority in the Order in Original. Accordingly, all the three appeal filed by the appellant were rejected. Therefore, the present appeals filed by the appellant.
2. None appeared on behalf of the appellant despite several dates of hearing fixed in the matter. Therefore, the appeal is taken for disposal on the basis of available records.
3. Shri S.K. Shukla, Learned Superintendent (Authorised Representative) appearing on behalf of the Revenue reiterates the findings of the impugned order. He has relied on the following judgments:
1. Siemens Gamsha Renewable Power P Ltd. vs CCE 2019 (365) ELT 631 (tri- Ahmd)
2. HRB Boarding & Lodging P Ltd. Vs Union of India 2015 (322) ELT 452 (Mad)
3. Nhava Sheva Vs Magus Estate & Hotel P Ltd. 2008 (222) ELT 245 (Tri- Mum.) 3 C/91-93/2011-DB
4. We have heard learned Authorised Representative and perused the records.
We find that the basic objection of the Revenue is that the floor price of USD 275 per MT CIF of the goods-Rough Marble was fixed under policy circular no. 13 (RE-
08)/2004-09 dated 30/06/2008. On that basis, the value was enhanced. In the identical issue, this Tribunal in the case of Siemens Gamsha Renewable Power P Ltd. vs CCE 2019 (365) ELT 631 (tri- Ahmd) has taken a view that merely on the basis of minimum import price fixed by policy circular cannot be a reason for enhancement of the value. Therefore, the value was enhanced on the basis of policy circular taking the floor price is not sustainable. It is also observed that the Adjudicating Authority deviated from the basic objection and relied upon contemporaneous import wherein the import was made at the rate of USD 275. We find that that even the price of USD275 per MT CIF is also keeping in view the policy circular. Secondly, the appellant were not provided the contemporaneous bills of entry. Therefore, if any new material was to be relied upon the appellant were to put to notice, which the Adjudicating Authority failed to do so. Therefore, in violation of principle of natural justice, the enhancement of value on the basis of contemporaneous import cannot be allowed. Therefore, we set aside the enhancement of the value. As regard the violation of requirement of circular that in case of declared value is less than the floor price, i.e USD 275, the appellant is required to obtain authorization from DGFT in terms of circular no. 13 (RE-
08)/2004-09 dated 30/06/2008. However, the appellant have not obtained any authorization. Therefore, for violation of the condition of the circular the appellant's goods was rightly confiscated. However, considering the facts, we set aside the enhancement of the value. The redemption fine and penalty needs to be reduced. Accordingly, we reduce the redemption fine from Rs. 2 lakhs to Rs. 1 lakhs and penalty from Rs. 40,000/- to Rs. 20,000/- in case of Appeal no. C/91/2011 and redemption fine from Rs. 1,00,000 to Rs. 50,000 and penalty from Rs. 20,000/- to Rs. 10,000/- each in the case of Appeal nos. C/92/2011 and C/93/2011. The impugned order is modified to the above extent. The appeals are partly allowed in above terms.
(Pronounced in the open court on 24/01/2020) (Ramesh Nair) Member (Judicial) (Raju) Member (Technical) Diksha