TaxTMI 
TaxTMI 
TaxTMI 
2014 (9) TMI 326
X X X X Extracts X X X X
X X X X Extracts X X X X
....ading (CTH) 2903 49 90 which covers - "other - Halogenated derivatives of cyclanic, cyclenic or cycloterpenic hydrocarbons". The containers lying in M/s. Binny CFS, Perambur, Chennai were detained for examination by the Officers of DRI. On an investigation, on random drawing of gas samples of about 5 grams each, it was found that all the samples were 100% R-22 Refrigerant gas. It was found that the imported refrigerant gas was an item falling under R-22, which was a restricted item. The Adjudicating Authority held that the imported item Refrigerant gas was an Ozone Depleting Substance, a prohibited item for import in India and that the importer had misdeclared the description in order to cater to the customer in the indigenous market, consequently, held that the same was classifiable under Tariff Heading 2903 49 10 of the Customs Tariff Act, 1975. The Adjudicating Authority re-determined the total value of the goods from US Dollars 1.70 per kg. (CIF) to US Dollars Rs. 61,50,012/-. 3. The Adjudicating Authority pointed out that one of the Directors of the Company viz., M/s. CMTPL, Chennai was present during the proceedings dated 7-12-2010 and made a voluntary statement before ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the case without further hearing, based on the oral and written submissions already made by them. It is also stated that importer being a small scale industry, they could not afford to lose precious time by cross-examining the expert, as the consignments were losing the shelf life. 6. Going through the objections, the Adjudicating Authority, ultimately came to the conclusion that there was misdeclaration of the item imported and it was R-22 refrigerant gas classifiable under Tariff Item 2903 49 10 of the Customs Tariff Act, 1975. Apart from misdeclaration, there was misdeclaration in terms of value and quantity too. 7. The Adjudicating Authority, however, allowed the redemption on payment of fine of Rs. 10,00,000/- (Rupees Ten Lakhs only) only for the purpose of re-export. The Adjudicating Authority also imposed penalty of Rs. 6,00,000/- (Rupees Six Lakh only) on the importer M/s. Chennai Maraine Trading Pvt. Ltd., Chennai under Section 112(a) of the Customs Act, 1962. 8. Aggrieved by this, the assessee/importer went on appeal before the Customs, Excise and Service Tax Appellate Tribunal. The assessee reiterated the grounds taken before the Adjudicating Authority ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dia as confirmed by the Division Bench of this Court in W.A. No. 400 of 2003, dated 6-3-2003 (The Union of India v. Sankar Pandi) as well as the decision of the Supreme Court reported in 1999 (113) E.L.T. 776 (S.C.) in the case of Siemens Limited v. Collector of Customs. He submitted that under similar circumstances, the Supreme Court has held that on re-export of the goods, there could not be a levy of redemption of fine. 12. Learned Standing Counsel appearing for the Revenue, however, supported the order of the Customs, Excise and Service Tax Appellate Tribunal. 13. Heard learned counsel appearing on either side and perused the materials placed on record. 14. A reading of the proceedings of the authorities below show that there was no dispute as to the fact R-22 refrigerant gas is a restricted item for import. 15. The assessee is a trader. The facts found at the time of intelligence investigation show that the assessee imported R-22 refrigerant gas, which is an ozone depleting substance. As per the policy decision taken by the Ministry of Environment & Forests (MoEF) in 1997, import of ozone depleting substance is restricted in India. The Import Policy for....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ctors of the Company, the Investigating Agency found that the imported item was R-22 refrigerant gas and not HCFC R-401A. The Adjudicating Authority further pointed out that the supplier had exported the impugned consignment as only R-22 refrigerant gas and that the assessee's Directors also confirmed this as R-22 refrigerant gas and the violations thus admitted, the Adjudicating Authority came to the conclusion that imported items was misdeclared, both on the description and quantity as well as on the value, consequently, he rejected the case of the assessee on all fronts. The value was re-determined under the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007, by going sequentially from Rule 4 to Rule 9 as mentioned in sub-clause (4) of Rule 3. The Adjudicating Authority further arrived at the conclusion that there was a conscious evasion in importing the prohibited item on the misdeclaration of the quantity, description as well as the value. The reasons given for misdeclaration were rightly rejected by the Revenue stating that if the misdeclaration had not been detected by the Department, the assessee would have defrauded the Government in succeeding the im....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ordering confiscation of one unit Laser Imager, the said Authority gave an option to the Company of redeeming the same on appropriate duty of the Customs leviable thereon. The Adjudicating Authority further gave the company an option to re-export the Laser Imager to Germany within 3 months from the date of receipt of the order, in which case, no duty will be chargeable. On appeal, the Tribunal held that if the assessee wanted to re-export, it was entitled to duty drawback in terms of Section 74 of the Customs Act. Though the assessee paid redemption fine of Rupees Six Lakhs, it was unable to re-export the goods within the three months time granted on account of certain reasons. On the appeal moved before the Apex Court and in the interim application made, the Apex Court extended the period of three months for re-export, in which event neither redemption fine nor duty were paid. In the background of this, the Apex Court allowed the appeal and directed the respondents to refund to the assessee the redemption fine paid by the assessee. This decision was followed by this Court in yet another case reported in 2002 (141) E.L.T. 635 (Mad.) in the case of Sankar Pandi v. Union of India. Th....