Customs, Excise and Gold Tribunal - Tamil Nadu
Selvam Dhall Mills (P) Ltd. vs Commissioner Of Customs, Chennai on 5 November, 2001
Equivalent citations: 2002(149)ELT317(TRI-CHENNAI)
JUDGMENT
Jeet Ram Kait
1. Since we propose to dispose of the appeal itself as the issue lies on a short compass and also the matter is covered by the decision of this Bench in favour of the assessee, we grant waiver of pre-deposit of penalty of Rs. 15,000/- and take up the appeal.
2. This appeal is against the order in Appeal No. C.Cus. 293/2001 dated 3.5.2001 passed by the Commissioner (Appeals), Chennai by which the Commissioner (Appeals) has confirmed the order in original passed by the Original authority and rejected the appeal of the party.
3. Shri S. Murugappan, learned Counsel for the appellants invited our attention to the judgement rendered by this Bench in the case of M/s Jupitar Exports & Others. vide final order No. 1778 - 1785 dated 11.10.2001. He, therefore, submits that the order passed by the Commissioner (Appeals) may be set aside with consequential relief to them.
4. Shri GS Menon, learned SDR submits that he has no objection if the matter is sent bach for de novo consideration to the Original authority in the light of the judgement of this Bench in the case of M/s Jupiter Exports & others vide final order No. 1778 - 1785/2001 dated 11.10.2001.
5. We have carefully considered the submissions made by both the sides and come to the conclusion that dried garlic is classifiable under ITC Sub-Heading 071290.04 and not under 070320.00 as held by the department, taking into account the moisture content of the goods on the basis of the DGFT's clarification dated 17.9.99. Since by virtue of the above classification, the goods are covered under OGL and even other wise, in the common parlance, they are covered under the OGL, the goods are not liable for confiscation under Section 111(d) of the Customs Act, 1962 and therefore, no redemption fine is imposable and so also penalty. In view of judgment rendered by this bench in the case of Mahendra Kumar Co. v. CCE Trichy, and also by the co-ordinate Bench of the Tribunal viz. The West Regional Bench in the case of JB Impex and Ors. v. CC vide final order No. C/II/2562-67/WRB/2000 dated 18.9.2000 wherein the similar issue has been dealt with at length, we are of the considered view that this case should also be remanded to the original authority for de novo decision as held in para 7 of the final order No. 1778-1785/2001 dated 11.10.2001 in the case of M/s Jupitar Exports & Others. The said para 7 is reproduced below for convenience of reference.
6. We have carefully considered the submission made by both sides and have come to the conclusion that dried garlic is classifiable under ITC Sub Heading No. 071290.04 and not under 070320.00 as alleged by the department, taking into account the moisture content of the goods on the basis of DGFT's clarification dated 17.9.99. Since by virtue of above classification , goods covered are under OGL, and even otherwise, in the common parlance, they are covered under OGL and are not liable for confiscation under Section 111(d) of the Customs Act 1962 and therefore, no Redemption Fine is imposable and no penalty could also be levied on them. As regards the enhancement of value, the same has to be done as per the settled position of law: if there is any contemporaneous imports, it should be on that basis and not solely on the basis of similar goods imported at the nearest Port disregarding other material evidences on record. Therefore, for the purpose of valuation, all these cases are remanded for reconsideration to the lower authority who would take into consideration the various judgments cited on valuation. Thus the appeals are allowed by way of remand.
6. The appeal is therefore allowed by remand.
7. (Dictated and pronounced in open