Custom, Excise & Service Tax Tribunal
(Arising Out Of Order-In-Appeal No. 155 ... vs Cc (Import) Nhavasheva on 26 June, 2012
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE
TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. II
IN APPEAL NO. C/504/12 -MUM
(Arising out of Order-in-Appeal No. 155 (Gr.I)/2012 (JNCH) IMP-137 dated 22.03.2012 and passed by the Commissioner of Customs (Appeals), Mumbai- II.)
For approval and signature: Shri Sahab Singh, Honble Member (Technical)
1. Whether Press Reporters may be allowed to see : No 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 : yes CESTAT (Procedure) Rules, 1982 for Publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : seen yes of the order?
4. Whether Order is to be circulated to the Departmental : yes authorities?
M/s Pepsico India Holding Pvt. Ltd.
: Appellant
Versus
CC (Import) Nhavasheva
: Respondent
Appearance Shri Santosh Bhandari, C.A. : For Appellant Ms. D.M. Durando, Dy. Commr. (A.R.) : For Respondents CORAM:
Shri Sahab Singh, Honble Member (Technical) Date of Hearing :
26.06.2012 Date of Decision:
26.06.2012 ORDER NO. ............................................
Per: Sahab Singh This is an appeal filed by M/s Pepsico India Holding Pvt. Ltd. against the Order-in-Appeal No. 155 (Gr.I)/2012 (JNCH) IMP-137 dated 22.03.2012.
2. Brief facts of the case are that the appellant has filed Bill of Entry No. 37803827 dated 13.06.2011 for clearance of 10 metric ton of Tomato Powder falling under CTH 07129090 with assessable value as Rs. 21,73,595/-. The Bill of Entry was assessed on 2nd Check basis. The FSSAI vide its report Cert. No. CFL/P-442/327/2011 dated 20.07.2011 stated that the sample did not conform to the standards of dehydrated vegetables as per P.F.A. Rules, 1955 as the ash contents was above 5%. Therefore, the goods imported are liable for confiscation under Section 111(d) of the Customs Act, 1962. The appellant vide their letter dated 12.09.2011 informed that their supplier has agreed to accept the return of the material and accordingly the appellant requested to grant them permission for re-export of goods under Section 74 of the Customs Act. The second test report of goods by Microchem Laboratory Ltd. vide R. No. 11636M/42 dated 30.06.2011 also found that the sample did not conform to Standards of PFA Rules, 1955. After hearing the appellant, the adjudicating authority confiscated the impugned goods under Section 111(d) of the Customs Act and ordered the same to be destroyed and imposed a penalty of Rs. 5,000/- under Section 112(a) of the Customs Act. The appellant was given an option to redeem the goods on payment of redemption fine of Rs. 6,00,000/- for export vide the impugned order.
3. The Learned Authorised Representative appearing for the appellant submitted that the appellant is a bonafide importer of food products and is aware of the requirement of the PFA Rules and they have never imported any sub-standard food items in past. Therefore, the order of imposition of redemption fine is not correct. He further submitted that the redemption fine imposed by the Commissioner (Appeals) is for higher side as the appellant actually imported the goods with no malafides. Therefore, redemption fine of Rs. 6,00,000/- is very high compared to the value of the goods. He therefore, submitted that the Order-in-Appeal passed by the Commissioner (Appeals) be set aside and their appeal be allowed.
4. The Learned Dy. Commissioner (Authorised Representative) submitted that as per two test report the goods were having ash contents of 8.12% & 6.29% which was more than permissible limit. She submitted that this is clear violation of PFA Rules and therefore, the goods have rightly been confiscated by the original adjudicating authority under Section 111(d) of the Customs Act, 1962. She therefore, submitted that the appeal filed by the appellant should be dismissed.
5. Heard both sides.
6. I find that the issue involved in the appeal is regarding violation of PFA Rule 1955. Two test reports, one by Central Food Laboratory and second by Micarochem Laboratory have shown the ash contents as 8.12% & 6.92% respectively much above permissible limit prescribed under the PFA Rules, 1955. Since ash contents is more than 5% in the imported goods, the impugned goods have been imported in contravention of PFA Rules, and therefore, goods are liable for confiscation under Section 111(d) of the Customs Act, 1962 and importer is liable to penalty under Section 112 of the Customs Act, 1962. Therefore, confiscation has rightly been upheld by the Commissioner (Appeals), Commissioner (Appeals) after going through the facts of the case, imposed the redemption fine of Rs. 6,00,000/- and the goods had been re-exported after payment of Rs. 6,00,000/-. Therefore, no infirmity can be found in the order passed by the Commissioner (Appeals). However, in view of the facts of the case, redemption fine is reduced to Rs. 4.5 lakhs.
6.2 Appeal is disposed of in the above terms.
(Dictated in Court)
(Sahab Singh) Member (Technical)
Sp/
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