M/S. Thameema Trading Corporation vs Commissioner Of Customs (Import), ...

[Arising out of Order-in-Appeal No.C.CUS.No.271/07, dated 08.05.2007 passed by the Commissioner of Customs (Appeals), Chennai ]

M/s. THAMEEMA TRADING CORPORATION APPELLANT

Versus

COMMISSIONER OF CUSTOMS (IMPORT), CHENNAI RESPONDENT

Appearance:

For the Appellant Shri B. Satish Sundar, Adv.

For the Respondent Shri R. Subramaniyan, AC (AR)

CORAM:

Honble Shri D.N. Panda, Judicial Member Honbe Shri R. Periasami, Technical Member

Date of hearing/decision 10-03-2015

FINAL ORDER NO. 40275 / 2015

Per D.N. Panda:

It is an established case on record that 144 items entered into India which were declared in the bill of exchange as plastic toys. While majority of the goods were different items, the balance were toys. Out of the total of 144 items in the consignment, 104 items were maps and clocks , 31 items were toys , 7 items were photo frames and 2 item were vacuum flasks. This makes clear that other goods were concealed misdeclaring the same as plastic toys. Such concealment was basis for confiscation of goods imported and penal consequences followed.

2.1 Learned counsel appearing on behalf of the appellant submits that so far as plastic toys are concerned, those were subject to market enquiry by Customs and arbitrary value thereof was determined. Drawing attention to the market enquiry, he submitted that higher value was adopted by Customs in respect of such goods. That caused prejudice to the appellants both in respect of levy of duty as well as penalty and redemption fine. He further raised an objection to the adoption of MRP before clearance. According to him, without the goods being cleared MRP cannot be fixed.

3. Revenue supports adjudication.

4. Heard both sides and perused the record.

5.1 Misdeclaration of description became patent upon detection by Customs. It was misdeclaration when there was concealment of other goods by plastic toys. Such material fact established the goods to be smuggled goods under section 2 (39) of the Customs Act, 1962. Accordingly, confiscation of the goods was bound to be ordered.

5.2 So far as the plea of market enquiry is concerned, appellant lost its entire right to ask Customs to adopt the value suggested by it when it smuggled the goods into India. Confiscation was warranted under law. Reasonable valuation of goods was adopted by Customs in the case which cannot be ruled out. It was left open to the appellant to adduce evidence to dispel the value adopted by Customs. But that was not done. There is no dispute by appellant with regard to the demand of duty. Therefore, that is confirmed. It may be stated that the appellant is in trade and it is well within its knowledge about MRP of the goods. Therefore, plea of post-clearance for MRP fails to stand.

6. The next question comes on the quantum of redemption fine and penalty imposable. Learned authority has recorded that looking to value of the goods, the redemption fine of Rs.1,50,000/- is justified. But he did not record what is the profit margin in respect of confiscated goods. Therefore, keeping in view the ratio laid down in the case of Commissioner of Customs, Mumbai Vs Mansi Impex reported in 2011 (270) E.L.T. 631 (S.C.) and considering reasonable margin in the trade of plastic toys, the redemption fine is reduced to Rs.1,00,000/- (Rupees One Lakh only).

7. Misdeclaration being patent upon concealment and deliberate misdeclaration of description and value of the goods, the amount of penalty imposed by Authority below is justified since interest of Revenue is prejudiced. That remained untouched by this order.

8. Appeal is allowed partly to the extent indicated above.

(Dictated and pronounced in open court)

(R. PERIASAMI) (D.N. PANDA) TECHNICAL MEMBER JUDICIAL MEMBER

ksr 13-03-2015

DRAFT Remarks

I II III

Date of dictation 10.03.2015

Draft Order - Date of typing 11.03.2015 12.03.2015

Fair Order Typing 13.03.2015

Date of number and date of dispatch

5 C/00090/2009