TaxTMI 
TaxTMI 
TaxTMI 
2014 (5) TMI 676
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.... was found that two machines having model number IR 6000 and IR 330 found in place of IR-600 and IR-300 respectively. Accordingly, Revenue entertained a view that appellant mis-declared the consignment as also the value of the same and further, as the appellant was not having any license to import the said goods, the same were put under seizure on 28.8.2008. 3. It stand observed in the impugned order of the Commissioner that on verification of the prices from the market, it has come to the notice that models mentioned in the invoices were obsolete models and all these models were of 5 - 10 years old and the manufacturers have discontinued the manufacturing of the said models and hence, the prices were not available. However, the Revenue still insisted on another Chartered Engineer's certificate which was produced by the appellant showing the value of the goods as Rs. 16,18,920/-. The said Chartered Engineer certificate issued by M/s. Rajesh Barman & Associates was also not accepted by the Revenue who procured another Chartered Engineer's certificate from Shri Pankaj Gupta wherein, he after examining the goods opined the value of the same as Rs.20,13,120/-. 4. The stateme....
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....he fine and penalty to 10% and 5% of the value of the goods. He prays for adopting the same treatment. 7. Learned DR, Shri P K Sharma, appearing for the revenue reiterates the finding of the lower authorities and submits that the appellants has himself agreed to pay the duty at the enhanced value. As such, he cannot be allowed to contend to the contrary. He submits that inasmuch as the goods stand examined by the department as also by various Chartered Engineers and the value stand arrived at Rs.20 lakhs approximately, the declared value of Rs.10 lakhs by the appellant cannot be adopted for the purpose of payment of duty. As regards redemption fine and penalty, he submits that the same is reasonable and does not call for any further reduction. He accordingly, prays for rejecting the appeal. 8. We have considered the submissions made by both the sides. As regards the value of the imported old and second hand photocopier, the Commissioner has increased the same based upon the Chartered Accountant's certificate. As already recorded there were 3 Chartered Engineers certificate. The first assessed the value of the goods around Rs.13 lakhs, second assessed the same around Rs.16 lak....
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....it has come to the notice that model mentioned in the invoices are obsolete models and these models are around 5-10 years old and the manufacturers had discontinued their manufacturing and hence the prices were not available. In view of above acceptance of the fact by the adjudicating authority, the enhancement of the value based on Chartered Engineers certificate is not justified. Admittedly the photocopier in question were very old and obsolete models and the value of such old goods is dependent upon the condition of same as also upon the market acceptance of the same. It may not be out of place to observe that items like photocopier are fast moving items and their models keep on changing very fast, thus reducing the value of the old models. Further, the value of such goods could also depend upon the usage of such goods and the condition of the same. 11. It is further seen that Revenue has procured three different Chartered Engineer's certificate without disclosing any reason as to why the first and the second certificate of the Chartered Engineers were not accepted by them. It is only when the third Chartered Engineer enhanced the value to the extent of Rs.20 lakhs, Revenue....
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....s and in the absence of any evidence that quantum of fine and penalty fixed by the Tribunal was on the lower side, the Revenues' prayer for enhancement of the same cannot be accepted. To the similar effect is decision of the Hon'ble Kerala High Court in the case of CC, Cochin vs. Office Devices [2009 (240) ELT 336 (Ker)] and the decision of the Tribunal in the case of CC, Cochin vs. Dilip Ghelani [2009 (248) ELT 888 (Tri-Bang)]. Some further reference can be made to the following decisions, where redemption fine and penalty was reduced to 10% and 5% of value:- 1. L.K. International vs. CC (Prev) Amritsar Final Order No. C/A/205-212/2012 Cus(DB) dated 25.6.12 2. B.E. Office Automation Products P Ltd. vs. CC (Prev) Amritsar Final Order No. C/A/177-188/2012-Cus(DB) dated 25.6.12 Hon'ble Bombay High Court in the case of Tejus Proprietary concern of Tejus Rohitkumar Kapadia [2012 (275) ELT 175 (Bom)] has observed that Tribunal is duty bound to follow the binding precedent and further observed that the CESTAT as a judicial body, must realize the importance of doctrine of precedent as in o....
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.... and condition of old and used photocopier machine as required under CBEC Circular No.4/2008 dated 12.02.2009 was also not furnished. Those photocopier machines were seized and confiscated resulting in levy of duty as well as imposition of redemption fine of Rs.5,00,000/- and penalty of Rs.2.50 Lakhs under Section 112A of the Customs Act, 1962. 2. Ld. Member Judicial, in her Draft Order while setting aside the impugned order against enhancement of the value, did not disagree to impose redemption fine and penalty but reduced the same to 10% and 5% of the value declared. This order does not stand to reason since imposition of reduced redemption fine and penalty was due to confiscateability which remained undisturbed due to proved mis-declaration. Accordingly setting aside of enhancement of assessable value runs counter to the above reduced imposition. The value has been enhanced by Commissioner based on Chartered Engineer Certificate provided by importer himself and further once it was proved that importation was without licence and were seized and confiscated requiring proper imposition of redemption fine and penalty to make such importation unviable and prohibitive. This follows t....
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....High Court Judgment in Tejas Proprietary concern of Tejus Rohit Kumar Kapadia 2012 (275) E.L.T. 175 (Bom.) required following of the judicial discipline. Reliance was placed by learned member in the case of Navpad Enterprises Vs. C.C., Cochin 2009 (235) E.L.T. 376 (Tri. Bang.) for drawing above conclusion. 5. The reasoning and finding recorded by the learned judicial member being not according to law as stated by Supreme Court in above case and facts on record, I record my separate order in the following paragraphs. 6. 105 Pcs. of old and used Photocopy Machines of different model alongwith their parts kept in 60 boxes were imported without licence required under Exim policy. Examination by the Custom showed presence of two machines having Model No. IR 6000 and IR 330 in place of IR600 and IR300. Misdeclaration of description was proved. So also the consignment was undervalued. This is obvious that misdeclaration usually results in misdeclaration of value. 7. There was significant variation in the valuation made by the Chartered Engineer in respect of the imported goods. While one such valuation was Rs.13 Lakhs, the other was around Rs.16 Lakhs. Due to such inconsistency, a cert....