Kaka Enterprises vs C.C.(Preventive), Amritsar

Arising out of the order in appeal No.119/CUS/LDH/2009 dated 12.11.2009 passed by the Commissioner of Customs & Central Excise (Appeals), Chandigarh.

For approval and signature:

Honble Mr. R.K. Singh, Technical Member

Honble Ms. Sulekha Beevi C.S., Judicial Member

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

Kaka Enterprises .. Appellant

Vs.

C.C.(Preventive), Amritsar . Respondent

Appearance:

None for appellant

Present Shri B.B. Sharwma, A.R. for the respondent

Coram: Honble Mr. R.K. Singh, Technical Member

Honble Ms. Sulekha Beevi C.S., Judicial Member

Final Order No.52523/2015

Per R.K. Singh:

This appeal has been filed against Order-in-Appeal dated 20.11.2009 which upheld the Order-in-Original dated 24.2.2009 except that the redemption fine was reduced from Rs.5 lakh to Rs.2.5 lakh and the penalty was reduced from Rs.50,000/- to Rs.20,000/-.

2. The facts of the case, in brief, are that the appellant imported old used CRT Colour Monitors which being old and used were not allowed to be imported without import licence. Value declared was also found to be unacceptable and therefore value was determined on the basis of Chartered Engineer certificate obtained locally. The Commissioner (Appeals) has clearly observed that the appellant did not contest the fact that the goods were restricted and also did not contest the valuation of the impugned goods.

3. In the appeal before CESTAT, the appellant has contended that  (i) the Order in  appeal was passed in violation of principle of natural justice (ii) the value declared was rejected without any basis, the redemption fine has not been properly quantified nor has the penalty been quantified appropriately. (iii) Penalty was imposable only for willful infringement of statutory provisions as held by the Honble Supreme Court in the case of Hindustan Steels Ltd. vs. State of Orissa  AIR 1970 Supreme Court 253.

4. When the case was called today there was no representation on behalf of the appellant nor was there any request for adjournment. Therefore, we proceed to decide the case on merits.

5. In this case , we find that the appellant had voluntarily chosen to forgo the requirement of issuance of show cause notice and therefore the contention that the order has been issued in violation of principle of natural justice, is not sustainable. The principle of natural justice merely require that nobody shall be condemned unheard. But there is no restriction on the person voluntarily forgoing its right for a show cause notice or personal hearing. There is no dispute that the goods , being old and used, required import licence which the appellant did not possess and he was aware of this fact. It is such a common knowledge for anyone dealing in the import of such goods that old and used goods require import licence. Thus the appellant willfully chose to infringe the import export policy by importing the said goods without import licence. We find that valuation has been done on reasonable basis and having not contested the same at the levels of primary adjudicating authority as well as first appellate authority, it is not open for it to contest the same at the level of the Tribunal as has been held by CESTAT in the case of Vikas Spinners vs. C.C., Lucknow  2001 (128) ELT 143 (Tri-Del.). Para 7 of the said judgment is reproduced below being directly relevant to the present case:

7.?In our view in the present appeal, the question of loading of the value of the goods cannot at all be legally agitated by the appellants. Admittedly, the price of the imported goods declared by them was US $ 0.40 per Kg. but the same was not accepted and loaded to US $ 0.50 per Kg. This loading in the value was done in consultation with Shri Gautam Sinha, the Representative and Special Attorney of the appellants who even signed an affirmation accepting the loaded value of the goods on the back of the Bill of Entry dated 7-5-1999. After loading of the value, the appellants produced the special import licence and paid the duty on the goods accordingly of Rs. 4,22,008/- on 19-5-1990. Having once accepted the loaded value of the goods and paid duty accordingly thereon without any protest or objection they are legally estopped from taking somersault and to deny the correctness of the same. There is nothing on record to suggest that the loaded value was accepted by them only for the purpose of clearance of the goods and that they reserved their right to challenge the same subsequently. They settled their duty liability once for all and paid the duty amount on the loaded value of the goods. The ratio of the law laid down by the Apex Court in Sounds N. Images, (supra) is not at all attracted to the case of the appellants. The benefit of this ratio could be taken by them only if they had contested the loaded value at the time when it was done, but not now after having voluntarily accepted the correctness of loaded value of the goods as determined in the presence of their Representative/Special Attorney and paid the duty thereon accordingly.

6. We find that the Commissioner (Appeals) had taken into account the facts and circumstances of the case and reduced the redemption fine and penalty imposed by the primary adjudicating authority to levels which are by all means not unreasonable and therefore warrant no appellate intervention. Thus, we do not find any infirmity in the impugned order. The appeal is dismissed.

(R.K. Singh)

Technical Member

(Sulekha Beevi C.S.)

Judicial Member

scd/

4