M/S. Magick Woods Exports Pvt. Ltd vs Commissioner Of Customs (Import), ...

(Arising out of Order-in-Appeal No. 108/2014 dated 31.10.2014 passed by the Commissioner of Customs (Appeals  II), Chennai)

M/s. Magick Woods Exports Pvt. Ltd. Appellant

Vs.

Commissioner of Customs (Import), Chennai Respondent

Appearance

Shri M. Rajendran, Advocate for the Appellant Ms. Indira Sisupal, AC (AR) for the Respondent

CORAM

Honble Shri R. Periasami, Technical Member Honble Shri P. K. Choudhary, Judicial Member

Date of Hearing / Decision: 08.07.2015

Final Order No. 40774 / 2015

Per R. Periasami

The appellants have filed appeal against the impugned order dated 31.10.2014 passed by Commissioner (Appeals).

2. The brief facts of the case are that the appellants being an EOU imported machineries under Invoice No. DS-E0501 dated 16.5.2006. The value has been declared as USD 98900 and the goods were cleared as per the procurement certificate dated 28.6.2006 subsequently the appellant filed letter to Customs seeking for amendment of the invoice to USD 197800 USD as per section 149 of the Customs Act, 1962. The adjudicating authority vide order 17.10.2007 rejected their request. On appeal, the Commissioner (Appeals) had remanded the case to the adjudicating authority vide order dated 26.11.2009. The adjudicating authority in the denovo order dated 17.9.2010, not only rejected their request for amendment under section 149 but confirmed the differential duty of Rs.18,29,011/- and confiscated the goods and imposed redemption fine along with penalty. On appeal, the Commissioner (Appeals) dismissed the appeal for non-compliance of predeposit. The appellant preferred appeal and the Tribunal vide Final Order No. 40259/2013 dated 10.7.2013 waived the predeposit and remanded the case to the Commissioner (Appeals) to decide the case on merit. The Commissioner (Appeals) in his impugned denovo order rejected the appeal and upheld the order of the adjudicating authority.

3. Heard both sides.

4. The learned counsel submits that initially they obtained the procurement certificate for the jurisdictional authorities for import of said goods and as per the payment conditions they have to pay 30% while placing the order, 50% at the time of delivery and the balance amount after installation. The supplier has raised the invoice only on the 50% of the amount i.e. USD 98900. He submits a copy of the procurement certificate dated 9.4.2007 issued by the Superintendent of Central Excise and the revised procurement certificate on full value for clearance of the said goods. He further submits that initially there was no demand as they only sought for amendment of invoice value and the Commissioner (Appeals) directed the lower authority to decide their request for amendment whereas the adjudicating authority demanded customs duty which is beyond the scope of Assistant Commissioners first order. The Advocate is not pressing for amendment of invoice under section 149.

5. On the other hand, the learned AR reiterated the findings of the Commissioner (Appeals) and submits that demand has been rightly confirmed as they have mis-declared the value and at the time of import there was no procurement certificate obtained for the enhanced value and they have not complied with the notification.

6. After hearing both sides and on perusal of the Tribunals order dated 10.7.2013, we find that the Commissioner (Appeals) has directed the adjudicating authority to consider the application for amendment of Bill of Entry under section 149 of Customs Act. The adjudicating authority in the remand order have denied the amendment but in addition demanded customs duty on the differential value and confirmed the demand. The Assistant Commissioner in his first order-in-original had only rejected their request for amendment under section 149 of Customs Act and the lower appellate authority had only remanded the case to decide amendment, therefore the demand of differential duty is beyond the direction of the remand by the appellate authority. On merits, we find that the appellant being an EOU eligible to import the goods without payment of duty and considering the terms of payment and the procurement certificate issued by the Divisional authorities covering the full value, there is no mis-declaration or malafide intention for evasion of duty. Accordingly, we hold that the demand of differential duty is not sustainable. Accordingly, the impugned order is set aside to the extent of demand of differential duty of customs and the appeal is allowed.

(Dictated and pronounced in open court)

(P.K. CHOUDHARY) (R. PERIASAMI) Judicial Member Tehnical Member

Rex

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