Custom, Excise & Service Tax Tribunal
Nexus Transcore Industries vs Commissioner Of Customs on 4 July, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH
CHENNAI
Appeal No.C/162/2005
[Arising out of Order-in-Original No.2272/2004 dt. 4.6.2004 passed by the Commissioner of Customs (Imports), Chennai]
For approval and signature :
Honble Shri P.K. Das, Judicial Member
Honble Shri R. Periasami, Technical Member
1. Whether Press Reporters may be allowed to see 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 CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not ? :
3. Whether the Members wish to see the fair copy of
the order? :
4. Whether Order is to be circulated to the Departmental authorities ? :
Nexus Transcore Industries Appellant
Versus
Commissioner of Customs
Chennai Respondent
Appearance:
Shri Muthuvenkatraman, Advocate (Proxy) For the Appellant
Shri K.P. Muralidharan, Supdt. (AR) For the Respondent
CORAM :
Honble Shri P.K. Das, Judicial Member
Honble Shri R. Periasami, Technical Member
Date of Hearing : 04-07-2014 Date of Decision : 04-07-2014
FINAL ORDER No.40371/2014
Per P.K. Das
1. Shri S.Muthuvenkatrman, Advocate submits that he has no instructions from the client. Therefore, he requested that the Court may proceed on merits.
2. On perusal of the records, we find that the Tribunal in the Final Order No. 198/2006 & Misc Order No.134/2006 both dt. 20.3.2006 dismissed the COD application and the appeal was dismissed as barred by limitation. The appellant filed a Writ Petition No.22138 of 2006 before the Hon'ble Madras High Court against the dismissal order of the Tribunal. The Hon'ble High Court by its order dt. 3.8.2006 directed the Tribunal to take up the appeal for disposing the same.
3. After hearing the Ld. A.R on behalf of the respondent, and on perusal of records, we find that Commissioner of Customs (Sea-Imports) denied the benefit of Exemption No.21/2002 dt.1.3.2000 (Sl.No.207) for import of "Electrical Steel Sheets in Coils-Seconds". He confiscated the goods and allowed redemption on payment of a fine of Rs.5 lakhs and imposed a penalty of Rs.2,50,000/-. On a perusal of the order dt. 3.8.2006 of the Hon'ble Madras High Court in WP No. 22138 of 2006, we find that the appellant had requested for re-export without payment of duty, fine and penalty of the goods which had been confiscated and penalty had been imposed. The Commissioner (Appeals) did not grant permission to re-export. This order was passed on 10.6.2004 and the appellant could have filed appeal within 90 days therefrom. Thereafter, they kept on requesting the Department for permitting them for re-export. In the meantime, the appellant had paid the Customs duty, fine and penalty and thereafter their request for export was allowed on 20.11.2004. On a query from the Bench, the Ld. Advocate submits that, as per the records, the goods were re-exported.
4. There is no dispute that the appellant filed Bill of Entry and declared the goods CRGO Electrical Steel Sheets in Coils in prime quality and claimed benefit of concessional rate of duty. On examination of goods, it was found to be seconds. Thus, there is no dispute of misdeclaration of goods and confiscation under Section 111 (m) of the Customs Act, 1962 is justified. The relevant portion of the finding of the Adjudicating Authority is reproduced below :-
"I observe that the description in the Invoice is as per what was advised to the supplier by the importer in their Order Confirmation and is not as if given by the supplier. Such sanctity cannot be attached to the invoice in this case as to decide the issue of misdeclaration basing solely on that. Other factors, facts and circumstances such as value will be relevant considerations as rightly pointed out by the importer who has cited a price of US$ 600/MT for the seconds as noticed vide Bill of Entry No.532322 dated 17.09.2003. It is a matter of Common Knowledge for those connected or conversant with the matters of business in Steel that the prices of Steel material have increased all the world over after September, 2003. The contemporaneous prices of imports of Prime CRGO Electrical Steel Coil has varied from US$ 1061/MT to US$ 1244/MT averaging above US$ 1145/MT during the month of March 2004, the month of the present import s evident from the Computer Print Out of list and details of transacted prices of imports at various Indian Ports as compiled by the Directorate General of Valuation, Customs, Mumbai. As against that, the declared price of the imported goods is only about US$ 990 which is much lesser than even the lowest real price so noticed. The importer, being not new to the business in Steel, would certainly have to be attributed with the awareness and knowledge of such ruling prices and of the fact that the price being given to the imported goods was not the price for the prime material but much less than that. Further, the supplier abroad has not confirmed that the shipment was wrong and for that matter, the importer itself has not even produced any evidence of any claim or correspondence made by them against the supplier or the shipment Further, the plea that the Country of Origin was misdeclared due to the inadvertence of the Staff of the CHA cannot be accepted as the importer has subscribed to the declaration that whatever was stated above in the Bill of Entry were true and therefore it was the importer's burden to make the correct entries. All the above aspects necessarily indicate that the importer's version is not bonafide."
5. We find that the appellant had not refuted the finding of the Adjudicating authority. Therefore, the contention of the appellant that they were under bonafide belief, cannot be accepted. In view of that, we do not find any reason to interfere with the order of the adjudicating authority. Accordingly, the appeal filed by the appellant is dismissed.
(Dictated and pronounced in open court)
(R. PERIASAMI) (P.K. DAS)
TECHNICAL MEMBER JUDICIAL MEMBER
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