Custom, Excise & Service Tax Tribunal
Nitco Tiles Ltd vs Commissioner Of Customs, Mumbai on 10 March, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPEAL No. C/693/04-Mum (Arising out of Order-in-Original No. 38/2004/CAC/CC/CMM dated 7.4.2004 passed by Commissioner of Customs (Export Promotion), Mumbai) For approval and signature: Honble Mr. S.S. Garg, Member (Judicial) and Honble Mr. Raju, 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 :
CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Nitco Tiles Ltd. Appellant Vs. Commissioner of Customs, Mumbai Respondent Appearance: Shri J.C. Patel, Advocate, for appellant Shri Chatru Singh, Assistant Commissioner (AR), for respondent CORAM: Honble Mr. S.S. Garg, Member (Judicial) Honble Mr. Raju, Member (Technical) Date of Hearing: 18.11.2015 Date of Decision: 10.3.2016 ORDER NO Per: S.S. Garg
The present appeal is directed against the order of the Commissioner of Customs (Export Promotion), dated 7.4.2004.
2. Briefly the facts of the present case are that the appellant is engaged in export of marble articles such as table tops and in March 2000, the appellant filed two shipping bills bearing No.1000028444 dated 15.3.2000 and No.1000028895 dated 16.3.2000 seeking to export two consignments of marble articles against EPCG licence No.01500322/1/13/10/01 dated 21.3.1996 held by the appellant. The appellant had, even prior to the filing of these shipping bills, fulfilled the export obligation under the said licence, which was required to be fulfilled before 31.3.2000 and has annexed the copy of the statement of exports. The department objected to the detailed value of the goods on the ground that the declared value of $ 650/- per sq.m. was on the higher side and considering that the import price varies from $ 30/- to $ 70/- per sq.m. after taking into account labour cost/workmanship. In view of the objection raised by the department, the appellant requested for permission to take back the goods to town. The Commissioner of Customs adjudicated the matter vide his order dated 31.7.2000 and held the goods to be liable for confiscation under Section 113(d) and (i) of the Customs Act, 1962. He gave option to the appellant to redeem the goods and take them back to the town on payment of a fine of Rs.1,00,000/- for each of the two consignments and also imposed penalty of Rs.10,000/- each. The appellant paid the total fine of Rs.2,00,000/- and penalty of Rs.20,000/- and took the goods back to the town. Thereafter the department preferred an appeal before the Tribunal and the Tribunal vide its order dated 28.1.2004 remanded the matter back to the Commissioner for redetermination of quantum of fine and penalty. On remand, the Commissioner of Customs (Export Promotion) passed the fresh order dated 7.4.2004 and imposed a fine of Rs.4,00,000/- and penalty of Rs.7,50,000/-. Aggrieved by the same, the appellant has filed the present appeal.
3. The learned counsel for the appellant submitted that the fine and penalty imposed by the learned Commissioner are excessive and disproportionate to the gravity of the offence and the learned Commissioner should have maintained the same fine and penalty which were imposed by the earlier Commissioner. He further submitted that the appellant in fact did not get any undue benefit as the goods in question were not exported against the EPCG licence and were taken back to town. He also submitted that the appellant had already discharged the export obligation in excess of the stipulated export obligation, even before filing of the two shipping bills. He also submitted that the learned Commissioner has imposed the fine and penalty on the basis of assumed benefit which the appellant never got.
4. On the other hand, the learned AR reiterated the findings of the Commissioner.
5. We have heard the learned counsel for the parties and perused the record.
6. On perusal of the record, we find that the earlier adjudicating Commissioner vide his order-in-original has found the market value of the goods around $ 30/- to $ 70/- per sq.m. and the realistic value could not be more than Rs.8 to 10 lakhs in each case and the exporter had accepted this adjudication order. It is pertinent to mention that the declared value of the marble i.e. US$ 650/- per sq.m. is extremely high, considering the fact that import prices of the goods during the relevant period varied from $ 30/- to $ 70/- per sq.m. We also note that in the impugned order, the learned Commissioner has also observed that by overvaluation, the appellant would have got the benefits of customs duty to the tune of Rs.11,17,402.73 (approx.) by showing the export towards fulfilment of export obligation under the EPCG licence dated 21.3.1996. As per the remand order of the Tribunal, the learned Commissioner redetermined the redemption fine and revised it to Rs.4,00,000/- which, according to our opinion, is not excessive and, therefore, we uphold the same. However, the learned Commissioner has revised the penalty from Rs.20,000/- to Rs.7,50,000/- which, in our considered opinion, is on the higher side and, therefore, we reduce the same to Rs.5,00,000/- keeping in view the facts and circumstances of the case.
7. Therefore, the present appeal is partly allowed. The redemption fine is maintained intact and the penalty is reduced from Rs.7,50,000/- to Rs.5,00,000/- (Rupees five lakhs only).
(Pronounced in Court on 10.3.2016) (Raju) Member (Technical) (S.S. Garg) Member (Judicial) tvu 1 5 C/693/04