Customs, Excise and Gold Tribunal - Tamil Nadu
Computer Graphics Ltd. vs Cc on 6 February, 2002
Equivalent citations: 2002(82)ECC135
ORDER S.L. Peeran, Member (J)
1. The short issue that arises for consideration in all these three appeals which arise from a common Order-in-Original No. 113/97 dated 27.8.97 passed by the Commissioner of Customs (sea), Chennai is as to whether valuation which was adopted for the imported goods of Rs. 10,33,108 is proper or not and whether on that basis imposition of fine of Rs. 3 lakhs and penalty of Rs. 50,000 is justified as fixed in the impugned order.
2. Ld. Counsel Shri S. Murugappan alongwith Ms. Prameela Viswanathan. Ld. Counsel submits that they are not contesting the case pertaining to goods which were required to have been imported on licence but the only contest is made for the value adopted and on this basis, the fine & penalty fixed is not proper as the department has not produced or relied on the market value of the goods. He contends that redemption fine determination has not been arrived at as per the formula prescribed under Section 125 of the Customs Act. It is his submission that in similar matters, this Bench remanded the case for do novo consideration as the value, fine and penalty was not arrived at in terms of the formula prescribed under Section 125 of the Customs Act. He cites the case of Ackshai Marketing & Services Pvt. Ltd v. CC, Chennai 2001 (45) RLT 560 (CEGAT-Ch.). He submits that this particular case falls within the ambit of the ratio of the cited judgment. He seeks for remand of the case so that the adjudicating authority can proceed to redetermine the value, fine and penalty after ascertaining the market value of the imported goods and fix the value, fine and penalty in terms of the formula prescribed under Section 125 of the Customs Act. Ld. Counsel submits that appellant importer is the actual user and is not selling the goods and therefore the value arrived at is not proper. He is willing to go give the details that would be required for ascertaining the market value to the department in the de novo proceedings.
3. Ld. DR Shri A. Jayachandran reiterates the departmental view.
4. We have carefully considered the submissions and find merit in the Counsel's submissions. We notice that in a similar matter this Bench has remanded the case for de novo consideration to arrive at the value, fine and penalty in terms of the formula prescribed under Section 125 of the Customs Act, 1962. The findings recorded in para-3 of the cited judgment of Ackshai Marketing & Services Pvt. Ltd. (supra) is reproduced herein below:
3. We have heard Ms. Sakthi, learned advocate for the appellants and Shri S. Arumugam, Ld. DR for the Revenue and after considering the submissions of both sides we find --
(a) The Collector has come to a conclusion, regarding the proposal for confiscation of the impugned goods, on the grounds of mis-declaration and has ordered the confiscation thereof. However, there is no finding arrived at, as regards the market price of the goods, which, we find, was imperative on his part to have determined; as redemption fines under Section 125 of the Customs Act are determined based on the market price and margin of profit. Therefore, we cannot give a finding whether the redemption fines are adequate. Such orders are, therefore, liable to be set aside.
(b) We find, that in respect of Bills of Entry No. 10380, 10381 & 10382 all dated 29.2.96, the Commissioner has granted permission for export of the said consignments. These consignments were under clearances and have been permitted to be exported. Revenue has not come up in any appeal, against this decision of the permission of export of these goods, which were found to be mis-declared. Therefore, we cannot appreciate the argument of Ld. JDR that redemption fine for mis-declared goods even though permitted to be exported was positively called for. Since the Revenue has not come in any appeal against the order of the re-export by the original authority and also appellants are wanting exports of the goods, we allow the export of the said consignment within a period of three months from the date of receipt of this order without any redemption fine in the facts of this case. On this issue, we are supported by the judgment of Hon'ble Supreme Court, cited by Ld. Advocate, in the case of Siemens Ltd. v. CC and Tribunal in the case of HCL Hewlett Packard Ltd. v. CC wherein the Supreme Court as well as the Tribunal have not upheld the imposition of redemption fine of goods which are eventually permitted to be exported even though they were held liable for confiscation.
(c) The consignment which were found and seized in the bonded warehouse has been permitted to be cleared from customs and is found to be mis-declared. Therefore, its liability for confiscation is upheld. However, redemption fine determination, thereof, has not been arrived at as per the formula prescribed under Section 125. We would therefore, remand the matter back to the original authority for redetermination of the same after putting the importers to a notice and thereafter deciding the matter by following the principles of natural justice as regards margin of profit, market price and evidence thereto.
(d) As regards penalty, we would set the same aside and remand the matter back to determine the imposition and or quantum of penalty required to be imposed in this case, as three consignments are permitted to be exported and it is only one consignment, which is held liable for confiscation due to alleged mis-declaration.
(e) We find, that a duty demand has been made but from the facts of the case, it appears that the goods were found in the bonded warehouse. We, therefore, cannot uphold the liability for duty so long as the goods are in the bond within the bonded period. The order does not indicate how the duty liability arises. Therefore, the duty as determined is also set aside with directions that the same should be determined as per the provisions of law.
5. In view of the above ratio of the judgment, we set aside the impugned order and remand the case for de novo consideration to the original authority to reconsider the plea for refixation of value, fine and penalty in terms of the formula laid down under Section 125 of the Customs Act and in keeping with the ratio already cited supra. Thus, the appeals are allowed by way of remand to the original authority.