M/S. Wardhman Trading Co vs Commissioner Of Customs, Nagpur

[Arising out of Order-in-Appeal No. RK/18/NGP-Cus/2004 dated 29.01.2004 passed by the Commissioner of Customs, Nagpur].

For approval and signature:

Honble Shri P.S. Pruthi, Member (Technical) Honble Shri 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. Wardhman Trading Co. Appellant

Vs.

Commissioner of Customs, Nagpur Respondent

Appearance: Mr. N. D. George, Advocate for Appellant

Mr. D. K. Sinha, Asstt. Commr. (AR) for Respondent

CORAM: Honble Shri P.S. Pruthi, Member (Technical) Honble Shri Ramesh Nair, Member (Judicial)

Date of Hearing: 09.07.2015

Date of Decision: 09.07.2015

ORDER NO. 

Per: Shri Ramesh Nair

This appeal is directed against Order-in-Appeal No. RK/18/NGP-Cus/2004 dated 29.01.2004 passed by the Commissioner of Customs, Nagpur, wherein the Ld. Commissioner in the appeal filed by the appellant, passed the following order:

(i) the penalty imposed by the lower authority under Section 112(a) of the Customs Act, 1962 is reduced to Rs.60,000/- (Rs. Sixty Thousand Only)

(ii) the redemption fine of Rs.5,00,000/- imposed by the lower authority is reduced to Rs.2,50,000/- (Rs. Two Lakh Fifty Thousand Only)

(iii) the order of the lower authority stands modified to the extent as indicated above.

2. The fact of the case is that the appellant M/s. Wardhman Trading Co., Delhi has filed Bill of Entry No. 2672 dated 04.12.2003 for clearance of imported goods. The description in Bill of Entry, Invoice, Packing list etc. read as Used Monitor 15. The CIF Value of the goods imported was declared as Rs.6,85,847/-.

3. The goods in question were examined in the presence of the representative of the importer on the first check basis and was noticed that the importer has not declared any specific description, make, model, quantity etc. of each monitor, whereas the description, model no. and quantity were verified. In the examination, the goods were found to be old and used 15 colour monitor with the make, model no., country of origin and year visible on the main frame. The monitors were of assorted brands. The Customs Officers observed that import of old and used goods without a licence was restricted in terms of Para 2.32 of the Exim Policy. The Officers further enquired that the value of 15 monitor which is old and used is available in the NIDB, vide Bill of Entry No. 388136 dated 05.09.2003 for similar type of goods pertaining to Mumbai Custom House. The unit price for the said monitor is Rs.760.76, which is the assessable value.

4. A show cause notice was issued to the appellant proposing the assessment at the rate of Rs.760.76 in respect of Entry No. 2672 dated 04.12.2003 in terms of Rule 6 of the Customs Valuation Rules, 1988. Confiscation of goods is question under Section 111(d) and 111(m) and penalty under Section 112(a) of the Customs Act, 1962 was also proposed in the show cause notice.

5. In the adjudication, the adjudicating authority vide Order-in-Original No. 1/04 dated 17.01.2004 enhanced the total value of goods to Rs.7,87,387/- and ordered levy on custom duty on such value. He also ordered confiscation of the imported goods value Rs.7,87,387/- under Section 111(d) and 111(m) of the Customs Act, 1962. He allowed the redemption of goods on payment of redemption fine of Rs.5,00,000/- under Section 125(1) of the Customs Act, 1962. He also imposed the penalty of Rs.1,20,000/- under Section 112(a).

6. Being aggrieved with the said adjudication order, the appellant filed the appeal before the Ld. Commissioner (Appeals) who modified the Order-in-Original, accordingly reduced the penalty to Rs.60,000/- and redemption fine to Rs.2,50,000/-. Being aggrieved with the impugned order, the appellant is before us.

7. Shri N. D. George, Ld. Counsel for the appellant made a statement that on the instruction of the appellant that the appellant is not contesting the valuation issue. However, they only contest the imposition of redemption fine and penalty. In this regard, he submits that the appellant is not disputing the valuation and they have paid the duty on the enhanced value. He further submits that the enhancement of the value is only to the tune of Rs.94,682/- which is not very abnormal. In view of the quantum of differential value in the present case, the redemption fine and penalty imposed by the Ld. Commissioner is still very higher-side and unreasonable. He submits that in view of the overall facts of the case and conduct of the appellant, redemption fine and penalty imposed by the Ld. Commissioner deserve reduction. In support of his submission, he laced reliance on the judgment of this Tribunal in the case of Noor Niryat V/s CC, Mumbai  [2003 (158) E.L.T. 580 (Tri.- Mum.)].

8. On the other hand, Shri D. K. Sinha, Ld. Asstt. Commr. (AR) appearing on behalf of the revenue reiterates the findings of the impugned order. We have carefully considered the submission made by both sides. We find that as per the facts of the case, the appellant has mis-declared the description of the goods and on examination; the imported monitors were found to be used and old. As per the Exim Policy import of old and used items can be made only on the import licence. The appellant fail to comply this requirement of the policy, therefore the goods were rightly confiscated. However, we find that the value of the goods declared and enhanced by the Customs Authority is not much different. The enhancement is only to the tune of Rs.94,682/- which is not significant. Therefore, in view of this differential valuation and taking into consideration facts and circumstances of the case, we find that redemption fine of Rs.2,50,000/- and penalty of Rs.60,000/- imposed by the Ld. Commissioner is also on higher-side. Therefore, we reduce the redemption fine from Rs.5,00,000/- to Rs.1,00,000/- and penalty of Rs.60,000/- is reduced to Rs.25,000/-.

9. The appeal is partly allowed in the above terms.

(Dictated in Court)

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

Saifi 1