TaxTMI 
TaxTMI 
2007 (4) TMI 508
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.... List No. 31 appended thereto) as also by confiscation of the goods (with redemption fine) and imposition of penalty. Some of the appeals are by indenting agents who are aggrieved either by imposition of penalty in connection with confiscation of some of the above machines or by demand of duty (along with confiscation and penalty) in relation to import of similar machines for which they were cited as importers in the relevant bills of entry. The Managing Partner of one of the indenting agencies is also in appeal against penalties imposed on him in relation to some of the imports. A few appeals are by a Customs House Agent who handled some of the imports and is aggrieved by imposition of penalty. All the imports, barring one, were made through Tuticorin Port. The remaining imports vide Appeal No. C/29/2007 was made through Chennai Seaport. The imported machines were described in the relevant bills of entry and other import documents as "Computerised Embroidery Pattern-making Machine with Plotter" and exemption from payment of additional duty of Customs (Countervailing duty) was claimed in terms of S. No. 251 of the Table annexed to Customs Notification No. 21/2002, dated 1-3-2002. "....
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....passed by the Joint Commissioner, the same were taken in appeal by the aggrieved parties to the Commissioner of Customs (Appeals), Trichy. The appellate authority rejected all the appeals on merits and affirmed the decision of the lower authority. Most of the appeals now before us are against the orders passed by learned Commissioner (Appeals), Trichy. The orders of adjudication passed by the Commissioner of Customs, Tuticorin, were also in the same line as those passed by the Joint Commissioner. Some of the appeals before us are against such orders of the Commissioner. In respect of the import made through the Chennai Seaport, the Joint Commissioner of Customs (Group 5A), Customs House, Chennai denied the benefit of the Notification to one M/s. Vora Creations in respect of the machine imported by them and confirmed demand of CVD against them. He also imposed a penalty on them under Section 114A of the Customs Act. A separate penalty under Section 112(a) of the Act was imposed on M/s. Macro Agencies, indenting agent, in India, of the foreign manufacturer/supplier of the machine. The appeal filed by M/s. Macro Agencies against the penalty imposed on them by the Joint Commissioner wa....
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....ere is an apparent conflict between SITRA's and TECSOK's reports of inspection of the machines in running condition. 5. Counsel/Consultants displayed on a laptop computer screen before the Bench a machine (which was claimed to be one of the embroidery machines in question) stitching an embroidery pattern on a stretched piece of fabric placed in horizontal plane. Subsequently the same machine, shown on the computer screen, was also shown to be plotting the same design on a piece of paper similarly placed. When the machine worked with the fabric, the needle, fitted to a 'head', moved up and down vertically while the fabric placed in horizontal plane was found to be moving with a certain rhythm in that plane. It was explained by the demonstrator (deputed by one of the importers) and his counsel that these movements of the fabric in the 'X-Y' plane were made possible by a software incorporated in the system. It was stated that different software's could generate different patterns of movements of the fabric in the X-Y plane, giving rise to different embroidery patterns on the fabric as end result. Where the machine was made to work with paper (instead of fabric), we were told, ....
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.... to confiscation and penalties are all ancillary. In these cases, we have not found any indication of the aforesaid question of fact having been settled beyond the pale of doubt. There is nothing on record to show that any of the adjudicating or appellate authorities chose to inspect any of the machines in running condition. SITRA's reports gathered by the department and those obtained by the importers are contradictory and any expert from that agency who inspected the machines was not called upon to give oral evidence. The appellants have submitted that, when SITRA inspected a machine in running condition, they found the machine to be with inbuilt plotter. The appellants have also claimed that it was without inspection of the machines in running condition that SITRA reported to the Customs authorities that no plotter was found in any of the machines. This claim of the appellants has not been rebutted by the Revenue. For this reason as also for the further reason that no oral evidence of SITRA's experts was gathered, we are not in a position to give any credence to SITRA's certificates. It is also pertinent to note that, whereas M/s. SITRA, after inspection of the machines in runni....