Custom, Excise & Service Tax Tribunal
Commissioner Of Customs -Commissioner ... vs Salim Enterprises on 23 September, 2022
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
CHENNAI
REGIONAL BENCH - COURT NO. I
Customs Appeal No. 40393 of 2022
(Arising out of Order-in-Appeal Seaport C.Cus. II No. 186-187/2022 dated 31.03.2022
passed by the Commissioner of Customs (Appeals-II), No. 60, Rajaji Salai, Custom House,
Chennai - 600 001)
The Commissioner of Customs : Appellant
Chennai-II Commissionerate
No. 60, Rajaji Salai, Custom House, Chennai - 600 001
VERSUS
M/s. Salim Enterprises : Respondent
Shop No. 78, Kedar Nath Road, Darya Ganj, Delhi - 110 002 WITH Customs Appeal No. 40394 of 2022 (Arising out of Order-in-Appeal Seaport C.Cus. II No. 186-187/2022 dated 31.03.2022 passed by the Commissioner of Customs (Appeals-II), No. 60, Rajaji Salai, Custom House, Chennai - 600 001) The Commissioner of Customs : Appellant Chennai-II Commissionerate No. 60, Rajaji Salai, Custom House, Chennai - 600 001 VERSUS M/s. Salim Enterprises : Respondent Shop No. 78, Kedar Nath Road, Darya Ganj, Delhi - 110 002 APPEARANCE:
Shri S. Balakumar, Authorized Representative for the Appellant Shri S. Sankaranarayanan, Advocate for the Respondent CORAM:
HON'BLE MR. P. DINESHA, MEMBER (JUDICIAL) FINAL ORDER NOs. 40330-40331 / 2022 DATE OF HEARING: 14.09.2022 DATE OF DECISION: 23.09.2022 2 Appeal. No(s).: C/40393 & 40394/2022-SM Order :
These appeals have been filed by the Revenue Seaport C.Cus. II No. 186-187/2022 dated 31.03.2022 passed by the Commissioner of Customs (Appeals-II), Chennai, whereby the First Appellate Authority has allowed the appeal filed by the respondent-assessee by also ordering provisional release of the impugned goods.
2. Heard Shri S. Balakumar, Learned Assistant Commissioner for the appellant-Revenue and Shri S. Sankaranarayanan, Learned Advocate for the respondent.
3. Brief facts, as could be gathered from the impugned Order-in-Appeal and which are undisputed, inter alia, are that the respondent viz. M/s. Salim Enterprises filed Bills- of-Entry Nos. 3462333 dated 31.05.2019 and 4053725 dated 13.07.2019 for clearance of used Digital Multifunctional Printers / Devices (MFDs) of various makes and models with standard accessories and attachments and classifying the goods under CTH 84433100; that the Revenue having noticed that the goods were second hand in nature, adhering to the RMS/CCR instructions mentioned in the EDI system and as per the prevailing practice, the cargo covered under the above said Bills-of-Entry was ordered for first check examination, to verify with respect to Chartered Engineer Report as to whether the residual life of the imported goods was 80%, to verify the nature of accessories, requirement for compliance of conditions imposed under Hazardous & Other Wastes Management Rules, 2016, E-Waste Management Rules, 2016, authorization of DGFT under FTP, 2015-20 and applicability of BIS as required under Compulsory Registration Order, 2012, apart from compliance to the RMS instructions.
4. The Adjudicating Authority, in the Order-in-Original Nos. 78916/2020 dated 06.01.2021 and 78919/2020 dated 06.01.2021, has inter alia found that the respondent:-
3Appeal. No(s).: C/40393 & 40394/2022-SM • Had not complied with the provisions of Domestic laws under the Bureau of Indian Standards (BIS) Act, 2016 read with the Electronics and Information Technology Goods (Requirements for Compulsory Registration) Order (CRO), 2012;
• Failed to obtain DGFT authorization as required for the import of second hand goods, as required under paragraph 2.31 of the FTP, 2015-20; and • Not produced the Chartered Engineer certificate in complete and properly, as advised by the Department, and thereby failed to comply with the conditions imposed under the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016, and consequently ordered as under:-
(i) Declared value of Rs.16,37,592/- (CIF) (Rupees Sixteen Lakhs Thirty Seven Thousand Five Hundred and Ninety Two only) in respect of the goods imported by M/s. Salim Enterprises vide Bill-of-Entry No. 3462333 dated 31.05.2019 and the declared value of Rs.20,29,725/- (CIF) (Rupees Twenty Lakhs Twenty Nine Thousand Seven Hundred and Twenty Five only) in respect of the goods imported by M/s.
Salim Enterprises vide Bill-of-Entry No. 4053725 dated 13.07.2019 were rejected in terms of the provisions contained in Rule 12 of the Customs Valuation (Determination of Price of Imported Goods) Rules, 2007 and re-determined the value of the goods as Rs.24,18,974/- (CIF) (Rupees Twenty Four Lakhs Eighteen Thousand Nine Hundred and Seventy Four only) and Rs.26,53,988/- (CIF) (Rupees Twenty Six Lakhs Fifty Three Thousand Nine Hundred and Eighty Eight only) respectively under Rule 9 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007.
4Appeal. No(s).: C/40393 & 40394/2022-SM
(ii) Confiscation of 130 units and 118 units of goods declared as 'Old & Used Digital Multifunction Print and Copying Machines with Standard Accessories' covered under Bills-of-Entry Nos. 3462333 dated 31.05.2019 and 4053725 dated 13.07.2019 respectively under Sections 111(d) and 111(m) of the Customs Act, 1962 for contravention of the provisions of imports, as discussed.
(iii) Imposed redemption fine of Rs.3,63,000/- (Rupees Three Lakhs Sixty Three Thousand only) and Rs.3,98,000/- (Rupees Three Lakhs Ninety Eight Thousand only) on the importer in terms of Section 125 of the Customs Act, 1962 and permitted the importer to re-export the subject goods imported vide Bills-of-Entry Nos. 3462333 dated 31.05.2019 and 4053725 dated 13.07.2019 respectively within 90 days from the date of receipt of the order.
(iv) Imposed penalty of Rs.2,42,000/- (Rupees Two Lakhs Forty Two Thousand only) and Rs.2,65,000/- (Rupees Two Lakhs Sixty Five Thousand only) in respect of Bills-of-Entry Nos. 3462333 dated 31.05.2019 and 4053725 dated 13.07.2019 respectively under Section 112(a)(i) of the Customs Act, 1962 on the importer for having rendered the goods liable for confiscation under Section 111(d) and 111(m) ibid.
(v) Imposed a penalty of Rs.25,000/- (Rupees Twenty Five Thousand only) each in respect of the above Bills-of-Entry under Section 117 of the Customs Act, 1962 on the importer for the non-compliance of the procedures set out under Section 49 of the Customs Act, 1962.
5. Aggrieved by the above orders, the appellant preferred appeals before the First Appellate Authority and the First Appellate Authority having heard the appellant as well as the representative (Mr. R. Syam Prasad, Appraiser) 5 Appeal. No(s).: C/40393 & 40394/2022-SM for the Revenue, allowed the appeals thereby ordering provisional release of the impugned goods, against which the present appeals have been preferred by the Revenue before this forum.
6. In the impugned order, the First Appellate Authority has only followed the order of this Bench of the CESTAT in the case of Commissioner of Customs, Chennai v. M/s. S.P. Associates [Customs Appeal No. 40098 of 2021] & ors. in Final Order Nos. 41931-41971 of 2021 dated 27.08.2021 and also the decision of the Hon'ble Apex Court in the case of M/s. Delhi Photocopiers v. The Commissioner of Customs, Chennai-II in Special Leave Petition No. 7565 of 2021 & ors. dated 11.08.2021 to order for provisional release of the goods.
7. I have considered the rival contentions and have gone through the decision of the Hon'ble Apex Court in the case of M/s. Delhi Photocopiers (supra) as well as the order of this Bench of the Tribunal in the case of M/s. S.P. Associates (supra).
8. The ratio of the above case has been followed by me in the case of The Commissioner of Customs, Chennai-II v. M/s. Kutty Impex in Customs Appeal No. 40390 of 2022 [CESTAT, Chennai], wherein it was held that the First Appellate Authority was correct in allowing the appeal thereby ordering provisional release of the goods in question, and since there is no change in the facts, I am of the view that the same is required to be followed in the case on hand as well. Following the above ratio decidendi, therefore, the appeals of the Revenue are dismissed.
9. In the result, the appeals of the Revenue are dismissed.
(Order pronounced in the open court on 23.09.2022) Sd/-
(P. DINESHA) MEMBER (JUDICIAL) Sdd