Customs, Excise and Gold Tribunal - Bangalore
Rex Printing Press vs Commissioner Of Customs on 15 December, 2004
Equivalent citations: 2005(184)ELT73(TRI-BANG)
ORDER S.L. Peeran, Member (J)
1. This appeal arises from OIO No. S33(VA)90/2004-A, dated 26-4-2004 passed by the Commissioner of Customs, Kolkata. The appellants took permission to contest and file the appeal in this Bench for the reasons stated in their application in terms of the Public Notice issued by the President. They were permitted to file the appeal in this Bench.
2. The appellants imported second-hand old and used Colour Offset Printing Machine & Roller. As they did not have the import licence, therefore, the same was ordered to be confiscated and has been released on fine of Rs. 9.5 lakhs and penalty of Rs. 2,00,000/-. The appellants are not contesting the order of confiscation in view of the Tribunal ruling rendered in the case of V. Solomon Jeyapandian v. CC, Tricky - 2002 (148) E.L.T. 810 (Tri. - Chennai) wherein the Tribunal, after examining the Supreme Court judgments on the point has upheld the order of confiscation. The only point raised by the appellants is pertaining to the valuation of the goods. They contend that the Department had obtained the Chartered Engineer's Certificate in the matter and the same should be accepted in the light of the Supreme Court judgment rendered in the case of Gajra Bevel Gears v. CC, Bombay - 2000 (115) E.L.T. 612 (S.C.) where the CE's Certificate has been accepted by the Apex Court in respect of valuation of second-hand machinery. The Tribunal also, in the case of Boddulari Graphics v. CC, Chennai - 2003 (159) E.L.T. 232 (Tri.-Chennai), noted that the CE Valuer's Report was not contested by the importer and, therefore, the same was relied by the Revenue and should be accepted. The learned Counsel also relied on the judgment rendered in the case of Sampurna Graphics (P) Ltd. v. CC, Chennai - 2004 (164) E.L.T. 464 (Tri.-Chennai) wherein also the CE's Certificate was accepted and based on that, the redemption fine has been fixed at 10% of the value of the said CE's certificate. She submits that penalty should also be fixed likewise to the extent of 10% of the CE's value.
3. The learned JCDR opposed the prayer and submitted that the matter has to go back to the original authorities for the purpose of considering the prayer of fixation of correct valuation of the goods and for fixing of appropriate fine and penalty in the matter.
4. We have carefully considered the submissions and have perused the records. We find lot of force in the submission made by the learned Counsel in the matter in the light of the judgments cited by her. The Hon'ble Supreme Court in the case of Gajra Bevel Gears v. CC, Bombay has accepted the valuation based on CE's certificate in respect of second-hand machine. Even in the case of Sampurna Graphics (P) Ltd., the CE's Certificate was accepted with regard to the valuation of second-hand offset press. So also, in the case of Boddulari Graphics v. CC, Chennai, the party had not contested the CE Valuer's Report and, therefore, the said report was accepted by the Tribunal. In the case of Medak Rubber Limited v. CC, Chennai -2000 (117) E.L.T. 700 (Tribunal), the invoice value of the second-hand machine was supported by CE's Certificate and the same was accepted by the Tribunal. So also, in the case of Rugmini Ram Raghav Spinners Pvt. Ltd. v. CC, Chennai - 1998 (103) E.L.T. 366 (Tribunal), the transaction value was supported by CE's Certificate and the Tribunal held that the same cannot be rejected. In the case of Mudra Offset and Ors. v. CC, Bangalore - 2004 (175) E.L.T. 470 (T) = 2004 (64) RLT 705 (CESTAT-Bang.) on a value of Rs. 1.25 lakh, RF was fixed at Rs. 20,000/- and penalty at Rs. 5,000/-. In all other appeals connected thereon, the penalty has been fixed at Rs. 5,000/-. Even where the value is on a higher side, the RF has been fixed at the rate of Rs. 20,000/-, Rs. 30,000/- and Rs. 22,000/- as per the order itself. In view of all these judgments, the prayer of the appellant to accept the Government approved CE's Certificate which was examined by the SIB Officer is required to be accepted. The declared value given by the Government approved CE is required to be accepted in the matter in the light of the Supreme Court judgments and the Tribunal rulings. The prayer of the appellants to fix RF and penalty at 10% is also in keeping with the judgments already noted supra. We notice that the Tribunal, in the case of Solomon Jeyapandian, has taken into consideration the actual user of the imported machineries. The same factor has been taken into consideration in Mudra Offset v. CCE, Bangalore in fixing up minimum fine and penalty of Rs. 20,000, 22,000/30,000 towards fine and Rs. 5,000/- towards penalty and the said order was not modified by the Tribunal. Taking into consideration all these factors and accepting the CE Report obtained by SIB itself, we fix the RF in terms of the judgments cited, to an extent of Rs. 1,91,048/- and penalty of Rs. 95,520/- in the matter. The impugned order is modified to the above extent and allowed accordingly.
5. The learned Counsel has produced 3 Orders-in-Original passed by the Additional Commissioner of Customs for Appraising Group-VB, Customs House, Kolkata wherein the RF and penalty has been fixed on used second-hand colour offset printing machine on varying propositions. In OIO No. 27/2004 dated 18-2-2004, the used second-hand Colour Offset Printing Machines and 10 nos. of Rubber Roller (New) for Akiyama Printing Machine have been valued at Rs. 12,88,384.84 and RF has been fixed at Rs. 1,00,000/- and penalty of Rs. 40,000/-. In OIO No. 29/2004, dated 18-2-2004, the same item of goods have been valued at Rs. 4,05,799/- with RF of Rs. 10,000/- and penalty of Rs. 10,000/- But, in OIO No. 31/2004, dated 3-12-2003, for the same set of goods valued at Rs. 6,61,752/-, the same Additional Commissioner has imposed RF of Rs. 1,00,000/- and penalty of Rs. 30,000/-. We find from these OIOs that there has been no uniformity in the fixing of RF and penalty by the same Additional Commissioner for orders passed during the same period. The Additional Commissioner should not show such indiscrimination in fixing the RF and penalty. Taking into consideration the overall facts and circumstances, and accepting the CE's Certificate and the orders of the Additional Commissioner passed in similar matters during the same period, we fix the RF in the present case @ 10% of Rs. 19,10,475/- at Rs. 1,91,048/- and penalty at 5% which works out to Rs. 95,520/-. Appeal allowed on the above terms.