Suj Impex vs Commissioner Of Customs (Imports)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH CHENNAI

Appeal No.C/42271/2013

[Arising out of Order-in-Appeal No.1075/2013 dt. 5.8.2013 passed by the Commissioner of Customs (Appeals), Chennai]

Suj Impex Appellant

Versus

Commissioner of Customs (Imports), Chennai Respondent

Appearance:

Shri R.Alwan, Advocate For the Appellant

Shri M.Rammohan Rao, DC (AR) For the Respondent

CORAM :

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

Date of Hearing/Decision : 15.04.2015

FINAL ORDER No.40420/2015

Per D.N. Panda

The goods imported by appellants through three bills of entry were assessed by Customs noticing misdeclaration of the value thereof. Copies of such documents are available at page 27 to 38 of the appeal folder. Ld. Commissioner (Appeals) has recorded in his order that imports of similar goods were made prior to 1998. In 2001, DRI detected that the goods of the kind imported by appellant were undervalued causing prejudice to Revenue. Therefore proceedings were initiated against appellant to reassess the value of imported goods.

2.1 Ld. Advocate explains that this appeal is in second round of litigation before Tribunal. It was before the Tribunal in Appeal No.C/382/2003. That was disposed by Final Order No.1116/2010 dt. 22.10.2010 remanding the matter to Commissioner (Appeals) for rehearing granting fair opportunity of hearing to the appellant. Ld. Commissioner (Appeals) in the de novo proceeding raised demand overvaluing the goods and upheld the adjudication. In the adjudication, there was levy of duty on the differential value. So also there was imposition of redemption fine of Rs.3 lakhs and penalty of Rs.75,000/-.

2.2. Ld. Advocate further submits that the authorities below merely relied on the statement recorded from the appellant under Section 108 of the Customs Act, 1962 to act against the appellant. That statement being recorded at the belated hour and also under duress that does not lend any credence to Revenue. Apart from such fact, there were three types of goods imported with following description :

(a) Secondary / defective CRGO electrical steel sheet cuttings / strips in irregular shapes and sizes

(b) Secondary / defective CRGO turns and bends in coiled form

(c) Secondary / defective blackish brittle CRGO small sheet cuttings in irregular shapes and sizes.

He submits that imports of some defective CRGO Electrical steel sheet cuttings/strips made by other importers were not questioned by department. Therefore charge of undervaluation shall not ipso facto provide basis to adjudication against appellant.

3. Revenue on other hand submits that appellant accepted the allegation made by DRI without any grievance. The goods were also cleared making payment of the differential duty. Its plea that statement was recorded under duress and at the belated hour is baseless in absence of evidence thereto. Declarations of the value made by the appellant in all the three bills of entry were deliberate misdeclaration which caused prejudice to Revenue.

4. Heard both sides and perused the records.

5.1 Appellant's allegation that 108 statement was recorded at the belated hour and also under duress is not substantiated by evidence showing raising of the said grievance before the higher authority nor any FIR filed. Therefore, plea of the appellant on this count fails.

5.2 We have perused the statement recorded by the authorities during the course of investigation (copy of which is available at pages 39 to 48 of appeal folder). It may be appreciated that 108 statement is recorded in the judicial proceedings and it cannot be faulted without any evidence being led to show that is incredible. Law is settled that customs officers not being police officers evidence recorded under section 108 of the Act cannot be discarded unless it is otherwise found that the same suffers from disability prescribed by law. We do not find any element of disability prescribed by law present in the case to discard the statement recorded by Customs.

5.3. Added to the above, appellant has also no merit to show that goods were technically tested either by the appellant or request to Revenue was made to make reference for technical report before making clearance. On such ground no provisional release was also sought. For no such act of appellant it does not appear that it has come out with clean hands. Therefore it has become so difficult in the absence of any technical report of examination of the goods to disturb valuation. Accordingly, appellant failed on the plea of overvaluation by department and undervaluation by assessee established.

6. Once the allegation is upheld as above, there shall not be any concession or relief on duty. Therefore, that part of the adjudication is confirmed.

7. So far as the redemption fine is concerned which is to the tune of Rs.3 lakhs, learned adjudicating authority as well as appellate authority failed to make market survey to find out the sale value of the goods to ascertain quantum of profit possible to be made out of the consignments. Considering that the matter has travelled for a long time, total value of goods was Rs.6.58 lakhs, looking to the quantum of the duty involved as well as the facts and circumstances of the case, it is considered proper to reduce the redemption fine to Rs.1,50,000/- (Rupees One lakh fifty thousand only) which is nearly 25% of the differential value. Only to this extent, the appellant gets relief in the appeal.

8. So far as the penalty is concerned, the law casts obligation on the importer to make truthful declaration of description as well as value of goods imported. Any untruthful declaration renders the goods to be confiscated which was rightly done. Therefore, imposition of penalty of Rs.75,000/- is not considered to be unreasonable for which that is confirmed.

9. The appeal is partly allowed only to the extent of redemption fine reduced as indicated above.

(Dictated and pronounced in open court)

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

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