Customs, Excise and Gold Tribunal - Mumbai
Dredging And Contracting vs Commissioner Of Customs on 4 January, 2005
Equivalent citations: 2005(183)ELT29(TRI-MUMBAI)
ORDER S.S. Sekhon, Member (T)
1. The Appellants are engaged in the business of dredging and laying pipe lines under sea water. In the month of October 1996, they were given sub-contract by M/s Hyndai Heavy Industries Ltd., the main contractors of M/s Indian oil corporation Limited, Refineries and Pipeline Division, to work on pipeline project at Narara Bet land fall, Vadinar (Gulf of Kutch), for the installation of the new SBM pipeline. They were given to understand that they could import into India, equipments and spares for use at site, as Ship's Stores on re-export basis. They shipped from Antwrep to Kandla, Company-owned two containers comprising a mobile work shop, accessories and spares for the maintenance of their equipment at site. The said two containers were discharged at the port of Kandla by vessel m.v.MORECAMBE BAT on 13.11.1996. They could not obtain the required Import Licence till 8.12.1996 and could not clear the goods from Customs. They had filed Bill of Entry dated 19.12.1996 for clearance of the said two containers through Customs and Claimed clearance without a licence on re-export basis. On examination of the container no discrepancy was found in the declarations. However, as the goods on said two Bills of Entries were found to be restricted items and their Imports could be allowed only on as against specific Import Licence. The Appellant after completion of the contract at site requested for re-export of the said two containers along with equipments and spares contained therein. Reserve Bank of India Ahmedabad has given no objection for the re-export of these goods vide their letter dated 11.1.97. The Commissioner holding the ignorance of law was no excuse vide impugned order No. KDL/COMMR/05/97 dated 13.397 confiscated the goods valued at Rs. 11,67,691/- CIF under Sec 111(d) of the Customs Act 1962 and gave an option to the Appellants to redeem the goods on payment of fine of Rs. 11,50,000/- in lieu of confiscation and also imposed penalty of Rs. 1,50,000/- on the Appellants under Section 112(a) of the Customs Act, 1962. By an Addendum dated 27.3.97 / 3.4.97 to the order-in-original, has further ordered "the goods and the two containers are allowed to be re-exported, after the payment of the aforesaid amount of fine in lieu of confiscation and penalty after following proper procedure and filing of requisite documents."
2. Heard both sides and considering the issue and it is found -
a) The liability to confiscation of goods restricted for import is upheld. However on perusal of the order the determination of MOP it not seen and the Ld.DR fairly conceded that Margin of Profit (MOP) determination in this case are not seen to have been arrived. This was required under the provisions of Section 125 of the Customs Act, 1962. Clearance of same on the fine as imposed cannot be upheld. In any case the goods are sought and permitted to be re-exported. The goods imported were not intended for sale or sold. Therefore, there can be no commercial margin of profit which could be worked out in this case. The heavy redemption fine imposed in this case is therefore not called for. The fine is therefore reduced to a token amount, since re-export is being permitted to Rs. 1000/- (One thousand only.
b) The penalty liability is however upheld at the level as arrived at by the Ld. Commissioner.
3. Appeal partly (allowed in above terms.
(Pronounced in Court)