M/S Mono Steel India Ltd vs Commissioner Of Customs (Prev.) ...

Appeal No.C/13005,13402/2014 [Arising out of OIA-224/COMMR-A-/JMN/2014, dt.20.06.2015, passed by Commissioner of Customs (Appeals), Jamnagar

M/s Mono Steel India Ltd Appellant

Vs

Commissioner of Customs (Prev.) Jamnagar Respondent

and vice versa

Represented by:

For Assessee: Shri Sarju Mehta, Chartered Accountant For Revenue: Shri S.K. Shukla, Authorised Representative

For approval and signature:

Honble Mr. P.M. Saleem, Member (Technical)

1. Whether Press Reporters may be allowed to see the No 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 of Seen the order?

4. Whether order is to be circulated to the Departmental Yes authorities?

CORAM:

HONBLE MR. P.M. SALEEM, MEMBER (TECHNICAL)

Date of Hearing/Decision:14.08.2015

Order No.A/11241-11242/2015, dt.14.08.2015

Per: P.M. Saleem

These appeals are filed by the Assessee and by the Revenue, against the same impugned Order-in-Appeal. Hence, both are taken up together for disposal.

2. The stated facts of the case, in short, are as follows:-

2.1 M/s Mono Steels India Ltd (herein after called as the Appellant) imported 16 containers weighing 324.975 MT of Heavy Metal Scrap. On preliminary examination, some quantity of scrap was found to be Mixed Aluminum Auto Casting Scrap, containing 30-40% of other metals alongwith castings. On weighment, Mixed Aluminum Auto Casting Scrap was found to be 30.880 MTs.

2.2 Further, considering the NIDB data and quantity of Mixed Aluminum Casting Scrap Tense of 30.880 MT, the assessable value was taken at R.69.22 per Kg and thus total customs duty of entire imported cargo was arrived at Rs.9,43,408/- as against the self-assessed total Customs duty of Rs.6,87,400/- in the Bill of Entry filed by the appellant and therefore, the differential duty of Rs.2,56,008/- had arisen. Thereafter, Mixed Aluminum Auto Casting Scrap (Tense) totally weighing 30.880 MT having assessable value of Rs.21,37,514/- was seized and remaining quantity of HMS totally weighing 294.095 MT having assessable value of Rs.41,37,917/- was also seized; the said goods were appeared to be liable for confiscation under Section 119 of the Customs Act, 1962.

2.3 The Appellant had accepted the value taken by the Customs and voluntarily paid the differential duty of Rs.2,56,008/- and submitted a bank guarantee for provisional release of seized goods and got the goods released.

2.4 The Adjudicating authority had vide his impugned order confiscated the quantity 30.880 MT of Mixed Aluminum Auto Casting Scrap and also confiscated the quantity of 294.095 MT of HMS and imposed fine of Rs.2,50,000/- and Rs.4,00,000/- respectively, confirmed the differential Customs duty of Rs.2,56,008/-. The Adjudicating authority also imposed penalty of Rs.1,00,000/- under Section 112 (a) of the Customs Act, 1962 against the Appellant. Also, penalty of Rs.50,000/- was imposed under Section 117 of the Customs Act, 1962 against the Appellant.

3. The Appellant filed an appeal before Commissioner (Appeals) against the said Order-in-Original. The Commissioner (Appeals), vide impugned order, modified the Order-in-Original to the following extent:-

15. In view of the facts and circumstances and cited judgments discussed in above paras, I am of considered opinion that the declared goods quantity of Heavy Metal Scrap of 294.095 MT being found as declared in the bill of entry and not proved to be used for concealment of the Mixed Aluminum Auto Casting Scrap Tense, hence the same is not liable for confiscation under Section 119 of the Customs Act, 1962 and the Appellant is not liable for penalty under Section 117 of Customs Act, 1962. I, therefore, set aside the order of confiscation/ redemption fine in respect of Heavy Metal Scrap totally weighing 294.095 MT. I also set aside the order of penalty imposed under Section 117 of Customs Act, 1962.

16. Regarding the quantity of 30.880 MT of as Mixed Aluminum Auto Casting Scrap Tense, I observe that as discussed above, the same was found undeclared and also having more value than the declared value by the Appellant in the bill of entry filed by them. It is also admitted fact that on said goods more Customs duty was leviable which the Appellant had deposited on being pointed out by the Customs. Hence, the said goods have been correctly ordered for confiscation by the Adjudicating authority vide the impugned order. I accordingly uphold the order of confiscation and redemption on payment of redemption fine as ordered vide the impugned order ordered by the Adjudicating authority. I also uphold the order of imposing penalty on the Appellant under Section 112(a) of the Customs Act, 1962. However, considering overall facts and circumstances of the case, I am of the considered opinion that penalty imposed on the Appellant in respect of the quantity of 30.880 MT of as Mixed Aluminum Auto Casting Scrap Tense does not commensurate with the contravention. The penalty imposed on the Appellant under Section 112 (a) is very harsh and higher side. I, therefore, reduce the penalty to Rs.50,000/- with consequential relief to the Appellant, if any.

4. Aggrieved by the said OIA, the Appellants are before us. Revenue is also before us praying for restoration of the impugned Order-in-Original.

5. The main contentions of the Appellant are:-

(i) That there was no necessity to issue Show Cause Notice as they have paid the duty in full prior to issuance of Show Cause Notice.

(ii) Goods cannot be confiscated.

(iii) Penalty under Section 112 is not imposed.

6. On the other hand, Revenue contends that the HMS scrap was used to conceal the Mixed Aluminum Auto Casting Scrap and should be confiscated.

7. Heard both the sides. On perusal of the facts of the case and after carefully examining the submissions of both the sides, it is seen that the contentions of the Appellant are not acceptable. It is found that in this matter, the issues to be decided by the Adjudicating authority were manifold. In addition to the differential duty leviable, the issue of confiscation of the goods which were seized, recovery of interest, and levy of penalty were also to be decided. Hence, there was no impropriety in issuance of Show Cause Notice. Further, the contention of Revenue is also haseless. The issue of confiscation of goods was examined by the Commissioner (Appeals) in detail in Paras 10,11, 12, 13.1, 13.2, 13.3, and 14 of the impugned Order-in-Appeal. He has set aside the order of confiscation and redemption fine in respect of heavy metal scrap weighing 324.095 MT which conformed with the declaration filed by the Appellant. However, he upheld the confiscation of 30080 MT of Mixed Aluminum Auto Casting Scrap as the same was found un-declared and was also mis-declared in respect of values. I do not find any reason to interfere with the well reasoned decision of the learned Commissioner (Appeals) in this regard. Imposition of penalty under Section 112 is also justified under the circumstances.

8. The learned Counsel for the Appellant relied upon the following case laws:-

i) CCE Delhi-III, Gurgaon Vs Roshan Lal Lalit Mohan 2006 (206) ELT 325 (Tri-Del)

ii) DCW Ltd Vs CC, Tricy 2004 (176) ELT 113 (Tri-Che.)

iii) CC (Prev.) Mumbai Vs Shri Ganesh Enterprises 2006 (199) ELT 208 (Bom.)

8.1 The issues concerned in this appeal are dependent on the facts of the case. It is observed that the facts in the cases cited supra are not identical with the facts of the present case.

9. In view of the above analysis, both the appeals, filed by the Assessee and the Revenue are dismissed.

(Operative portion of the order pronounced in Court)

(P.M. Saleem) Member (Technical)

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