M/S. Millenium Marbles Pvt. Ltd vs Commissioner Of Customs (Import), ...

[Arising out of Order-in-Original No. 12/2003 dtd. 3/3/2004 passed by the Commissioner of Customs (Import), Raigad]

For approval and signature:

Honble Mr. P.S. Pruthi, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial)

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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? =======================================================

M/s. Millenium Marbles Pvt. Ltd. : Appellants

VS

Commissioner of Customs (Import), Nhava Sheva : Respondent

Appearance

Shri Anil Balani, Advocate for the Appellants Shri Chatru Singh, Asstt. Commissioner (A.R.) for the Respondent

CORAM:

Honble Mr. P.S. Pruthi, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 15/7/2015 Date of decision /2015

ORDER NO.

Per : Ramesh Nair

This appeal is directed against Order-in-Original No. 12/2003 dtd. 3/3/2004 passed by the Commissioner of Customs (Import), Raigad, wherein the Ld. Commissioner confiscated the consignment of 305 MTs and 75.34 MTs of Rough Marble Blocks valued at Rs. 56,71,298/- vide Bill of Entry No. 947220 dated 9/1/2004 and 947221 dated 9/1/2004 under Section 111(d) of the Custom Act, 1962 with an option to redeem the goods on payment of Redemption fine of Rs. 18,00,000/- under Section 125 of Custom Act, 1962 and also imposed penalty of Rs. 6,00,000/- on the appellant under Section 112(a) of Custom Act, 1962.

2. The fact of the case is that the appellant imported Rough Marble Blocks and requested for first check examination of the goods and accordingly examination order of first check was given. The goods were examined and found to be rough marble blocks as declared in the Bill of Entry. The revenue in adjudication order contended that as per exim policy the import of rough marble blocks is restricted and specific licence is required for its importation. Since the importer have not obtained specific import licence, the import of rough marble blocks was held to be unauthorized import in contravention of Section 3 of Foreign Trade (Development and Regulations) Act, 1992 read with Section 11(2) (V) of Custom Act, 1962. Accordingly it was held that there is ITC violation. In addition the Bill of Entry No. 94221 it was found that the declared value was $ 308.16 CIF which is below the contemporaneous import value of $ 310 per MT CIF. The adjudicating authority, in view of the above contention confiscated the goods and demanded redemption fine of Rs. 18 lacks and imposed penalty of Rs. 6 lakhs. Aggrieved by the adjudication order appellant is before us.

2. Shri Anil Balani, Ld. Counsel for the appellant submits that there was general practice of import of rough marble blocks in all over the India by various importers. There was no intention to evade the custom duty. He submits that even enhancement of the value is not significant and the same is not based on proper evidence. It is his submission that in the identical goods this Tribunal taking consistent view reduced redemption fine to 20% of the value and penalty @ 5% of the CIF value in the judgment of Stoneman Marble Industries. This judgment has been upheld by the Honble Supreme court as reported in 2011(264) ELT 3(S.C)]. It is his submission that facts of the case in all the marble imports are more or less same therefore the ratio of the Honble Supreme Court judgment in the Stoneman Marble Industries case should be made applicable in the present case and he prays to reduce redemption fine to 20% of CIF value and penalty to 5% of CIF value.

3. On the other hand, Shri Chatrusingh, Ld. Asstt. Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that this Tribunal in various other cases maintained redemption fine and penalty. In this regard he place reliance on the following judgments:

(a) M/s. Marvellous Marble & Granite, M/s. Ojaswi Marble & Granite Pvt ltd. VS. Commissioner of Customs, Kandla[2014-TIOL-332-CESTAT-MUM]

(b) Classic Marble Vs. Commissioner of Customs (Import), Mumbai [2014(312) ELT 791 (Tri. Mumbai)]

(c) Sophisticated Marbles & Granite Industries Vs. Union of India [2004(166) ELT 318 (Bom)]

4. We have carefully considered the submissions made by both sides and perused the record.

5. We find that appellants only plea is reduction of redemption find and penalty in accordance with the judgment of Stoneman Marble Industries case (supra) of Honble Supreme Court. We find that there are some contrary judgments, also as relied upon by the Revenue wherein this Tribunal without reducing the penalty upheld the fine and penalty confirmed by the lower authority. However we observed that the facts of the import of rough marble blocks are more or less identical and in the case of Stoneman Marble Industries, Honble Supreme Court upheld the order of the Tribunal wherein redemption fine was fixed at 20% and penalty at 5% of CIF value. As regard contrary judgments of this Tribunal, in none of the case, judgment of Stoneman Marble Industries was considered. Therefore following judicial discipline, the ratio of the Apex Court judgment in case of Stoneman Marble Industries shall prevail over the other Tribunal judgments. Therefore following the ratio of the Stoneman Marble Industries case we reduce redemption fine of Rs. 16 Lakhs to 20% of CIF value and penalty of Rs. 6 lakhs is reduced 5% of the CIF value. Appeal is partly allowed in above terms.

(Order Pronounced in court on _____________)

P.S. Pruthi Member (Technical) Ramesh Nair Member (Judicial)

sk

5 APPEAL NO. C/522/04