2020 (10) TMI 232 - AT - Customs

Imported Goods Classification Upheld; License Required; Confiscation & Penalties Imposed

M/s Harital Marbles Pvt. Ltd., M/s Bono Marbles and M/s Classic Marbles Versus Commissioner of Customs (Imp), Mumbai

The Tribunal upheld the classification of imported goods as 'calcareous stone other than marble,' requiring a specific import license. The goods were ... Classification of goods imported - whether the goods imported are calcareous stone ‘other than marble’ which could be allowed to be imported only against SIL during the relevant period or the goods are “marble” as claimed by the appellants? - Confiscation - Redemption Fine - Penalty - HELD THAT:- In the de novo adjudication, learned Commissioner after considering the report of GSI and evidence of cross-examination of one of the Officer of GSI, held that the imported goods are not ‘marble’ but ‘other calcareous stone’. In arriving at the conclusion, the learned Commissioner heavily relied upon the judgment of the Hon'ble Supreme Court in the case of AKBAR BADRUDDIN JIWANI VERSUS COLLECTOR OF CUSTOMS [1990 (2) TMI 50 - SUPREME COURT] - there are merit in the observation of the Ld. Commissioner. No plausible argument was advanced on behalf of the appellants in support of their claim that the judgement of Hon’ble Supreme Court in the above case is distinguishable and not applicable to the case. Also, as observed by the ld. Commissioner and submitted by the Ld. AR for the Revenue that even though the appellants have raised an alternative argument that in the common parlance the goods imported by them is known as marble, but they failed to produce any evidence to substantiate the said claim. Thus, in absence of sufficient proof the said alternate plea also cannot be acceptable. Therefore, the goods imported by the appellants are not ‘marble’ but ‘calcareous stone other than marble’ which requires specific import licence at the relevant time. Whether there is violation of the relevant provisions of law on import goods? - contention of the appellant is that all these goods imported into India after 8.5.1999, hence insisting specific import licence only for the reason that the shipment were done prior to the said cut off date i.e. 8.5.1999 is not tenable in law - HELD THAT:- There are no merit in the said contention of the appellants in as much as the issue is settled in a series of cases including in the cases by the Hon’ble Madras High Court in M/S. ROYAL IMPEX VERSUS THE COMMISSIONER OF CUSTOMS, THE ASSISTANT/DEPUTY COMMISSIONER OF CUSTOMS, GROUP -1 [2019 (3) TMI 312 - MADRAS HIGH COURT], & M/S. AGRO 1 STOP REP BY ITS PROPRIETOR VERSUS THE COMMISSIONER OF CUSTOMS, THE ASSISTANT/DEPUTY COMMISSIONER OF CUSTOMS [2019 (3) TMI 1343 - MADRAS HIGH COURT] and Bombay High Court in SIDDHI VINAYAK, VERSUS THE UNION OF INDIA THROUGH THE SECRETARY, MINISTRY OF COMMERCE, DEPARTMENT OF COMMERCE, THE DIRECTOR GENERAL OF FOREIGN TRADE, THE COMMISSIONER OF CUSTOMS (IMPORT) , THE DEPUTY COMMISSIONER OF CUSTOMS, (IMPORT) , [2019 (4) TMI 344 - BOMBAY HIGH COURT], whereunder it is held that the date of shipment is relevant for compliance and not the date of import. Confiscation - HELD THAT:- The Ld. Commissioner has held that the imported goods have been declared as marble but on examination found to be not of ‘marble’ and is liable for confiscation under section 111(m); also since at the time of its shipment the appellant did not have specific import license, the goods are liable for confiscation under section 111(d) of Customs Act, 1962 - This Tribunal considered similar issue in case of M/S JUST MARBLE, M/S VAISHNO MARBLES VERSUS COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI [2016 (12) TMI 823 - CESTAT MUMBAI] and CLASSIC MARBLE VERSUS COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI-I [2010 (11) TMI 920 - CESTAT MUMBAI] and JAI BHAGWATI IMPEX PVT LTD VERSUS COMMISSIONER OF CUSTOMS & CENTRAL EXCISE, GOA [2017 (3) TMI 490 - CESTAT MUMBAI], held that in absence of SIL on import of the calcareous stone, the same are liable for confiscation and attracts penalty - there are no reason to interfere with the said finding of Ld. Commissioner Redemption fine - Penalty - HELD THAT:- This Tribunal in similar circumstances, in the case of GURU KRIPA MARBLES VERSUS COMMISSIONER OF CUSTOMS, NHAVA SHEVA [2006 (5) TMI 237 - CESTAT, MUMBAI] following the judgement of Hon’ble Bombay High Court in COMMISSIONER OF CUSTOMS, NHAVA SHEVA VERSUS MARMO CLASSIC [2003 (7) TMI 75 - HIGH COURT OF JUDICATURE AT BOMBAY], later approved by the Hon'ble Supreme Court reported as COMMISSIONER OF CUSTOMS (IMPORT) VERSUS STONEMAN MARBLE INDUSTRIES & ORS. [2011 (1) TMI 15 - SUPREME COURT] held that the redemption fine be restricted to 20% of CIF value and penalty to 5% of the said value. In the facts and circumstances of the case, ends of justice would meet if the fine and penalty is reduced to 20% and 5% respectively. The impugned orders are modified to the extent of reduction of fine and penalty to 20% and 5% respectively, and all the appeals are remanded to the adjudicating authority to calculate the redemption fine and penalty accordingly - Appeal allowed by way of remand. Issues Involved:1. Classification of imported goods as 'other calcareous stone' or 'marble.'2. Liability of the goods for confiscation and imposition of penalty on the appellants.Issue-wise Detailed Analysis:1. Classification of Imported Goods:The primary issue was whether the imported goods were 'other calcareous stone' as alleged by the Revenue or 'marble' as claimed by the appellants. The appellants argued that the goods should be classified as marble based on trade parlance and HSN Explanatory Notes. However, the Geological Survey of India (GSI) tested the samples and concluded that the goods were a variety of limestone, not marble, as they did not show evidence of metamorphic recrystallization. The Commissioner, relying on the GSI report and the Supreme Court judgment in Akbar Badruddin Jiwani's case, held that scientific and technical meanings should be considered over commercial parlance for classification purposes. The Tribunal found merit in the Commissioner’s observation and concluded that the goods were indeed 'calcareous stone other than marble,' requiring a specific import license at the relevant time.2. Liability for Confiscation and Penalty:The next issue was whether the goods were liable for confiscation and if a penalty was imposable. The appellants contended that the goods were imported after the policy change on 8.5.1999, which allowed importation of calcareous stone under SIL. However, the Tribunal upheld the Commissioner’s view that the date of shipment, not the date of import, was relevant for compliance, as settled in various High Court judgments. The Commissioner had held that the goods were liable for confiscation under Sections 111(d) and 111(m) of the Customs Act, 1962, due to misdeclaration and lack of a specific import license at the time of shipment. The Tribunal agreed with this finding, citing similar cases where the absence of SIL on import of calcareous stone led to confiscation and penalties.Redemption Fine and Penalty:The appellants argued that the redemption fine and penalty imposed were excessive. The Tribunal referred to previous judgments, including Gurukripa Marbles and Marma Classic, which set a precedent for reducing fines and penalties to 20% and 5% of the CIF value, respectively. Consequently, the Tribunal modified the impugned orders to reduce the fine and penalty accordingly and remanded the cases to the adjudicating authority for recalculation.Conclusion:The appeals were disposed of with a modification to reduce the fine and penalty to 20% and 5% of the CIF value, respectively, and the cases were remanded to the adjudicating authority for recalculating the redemption fine and penalty. The judgment emphasized the importance of scientific and technical classification over commercial parlance and upheld the principle that the date of shipment is crucial for compliance with import regulations.