TaxTMI 
TaxTMI 
2015 (4) TMI 112
X X X X Extracts X X X X
X X X X Extracts X X X X
....ingly, the consignment was taken up for further inquiries. 2. The imported goods were examined and it was found that same were 105 pieces of old and used photocopier machines and different models along with their parts kept in 60 boxes. During examination it 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 Engineers certificate which was produced by the appellant showing the value of the goods as Rs. 16,18,920/-. The said Chartered Engineer certificate iss....
X X X X Extracts X X X X
X X X X Extracts X X X X
....above proposition, learned advocate has relied upon various decisions. As regards the quantum of redemption fine and penalty, he submits that on account of non-availability of license to import the old and used photocopier; Tribunal in number of cases has reduced the 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 commensurate with the and 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 imp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rin [2005 (190) ELT 271 (Tri-Del)] enhancement of value of old and used photocopier machines on the basis of Chartered Engineers certificate was set aside. 10. We also note that the adjudicating authority, in the impugned order has held that on verification of the price from the market 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ala High Court reported as [2012 (278) ELT 172 (Ker)] when the appeals filed by the Revenue was dismissed. Hon ble Court observed that discretion to fix the redemption fine and penalty is not be exercised in mechanical way but the same is to be exercised in objective manner by quasi judicial authorities 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r NIDB Data and also levying redemption fine and penalty. The goods imported were 105 Pcs. of old and used Photocopy Machines of different model along with their parts kept in 60 boxes. These photocopiers were imported without any licence as required under Para 2.17 of Exim Policy 2004-2009. Land Port Charted Engineers Certificate of origin regarding valuation 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pend on the totality of the facts and circumstances of the case. 4. Learned judicial member held that because Tribunal has passed orders ordering reduction in the past, it was opted to follow the similar decisions noting that Bombay High Court Judgment in Tejas Proprietary concern of Tejas 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 misdeclar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Judicial). OR Whether the valuation as enhanced by revenue based on Chartered Engineer s Certificate are to be upheld as importations have taken place without licence and no land port Chartered Engineer s Certificate has been produced and further redemption fine and penalty as ordered by Commissioner is to be upheld as held by Member (Technical). (MANMOHAN SINGH) (ARCHANA WADHWA) MEMBER (TECHNICAL) MEMBER (JUDICIAL) Date of Hearing/order 12/12/2014 Per. Rakesh Kumar :- The appellant, a proprietorship concern, imported a consignment of 105 old and used photocopier machines of assorted make and filed a bill of entry dated 03/07/08 for their clearance. The declared value of the goods, as per the supplier s invoice, was Rs. 10,13,256/-. Since there was no Chartered Engineer s certificate alongwith the supplier s invoice, the appellant produced a certificate dated 11/07/08 of the Chartered Engineer M/s Rajesh Burman and Associates who estimated the value of the goods as Rs. 13,51,080/-. It appears that the Department was of the view that the Charter Engineer s report does not contain the required details and hence the same w....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Kerala High Court in the case of CC, Cochin vs. Office Devices reported in 2009 (240) E.L.T. 336 (Ker.) and also the Tribunal s decisions in the cases of CC, Cochin vs. Dilip Ghelani reported in 2009 (248) E.L.T. 888 (Tri. Bang.), and L.K. International vs. CC (Preventive) Amritsar (vide final order No. C/A/205-212/12 Cus dated 25/06/12). However, Hon ble Member (Technical) in a separate order dated 31/3/14 recorded by him held that the declared transaction value is not acceptable and that the Commissioner has correctly enhanced the transaction value to Rs. 20,13,120/-. He also held that there is no justification for reducing the redemption fine to 10% of the value and penalty to 5% of the value. 3. Accordingly, on account of difference of opinion between Member (Judicial) and Member (Technical), the following point of difference has been referred to the undersigned for decision :- "Whether assessable value as determined in adjudication by the revenue is to be set aside and redemption fine and penalty are to be reduced to 10% and 5% respectively as held by Learned Member (Judicial). Or Whether the valuation as enhanced by revenue based on Chartered Engineer....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... landed cost of the goods has been given by the Department to justify imposition of higher redemption fine and that in view of this, it is the order recorded by Member (Judicial) which is correct. 6. Shri Pramod Kumar, learned Jt. CDR, defending the impugned order pleaded that it is the order recorded by Member (Technical) which is correct. He pleaded that the importers themselves had produced the Chartered Engineer s certificate which had earlier ordered the value of the goods as Rs. 13,51,080/- and subsequently 100% on examination of the machines reversed the value to Rs. 16,18,920/-, that when the appellant themselves in a statement given under Section 108 of the Customs Act, 1962 had accepted the value determined by the Department, they cannot plead that the value given by the Chartered Engineer is not correct and the declared should be accepted, that the Apex Court in a series of judgment has held that quantum of redemption fine must be sufficiently high to mop up the entire margin of profit as nobody should be allowed to make profit by importing any goods in contravention of the Exim policy, that in this case the appellant had imported a consignment of 105 old and used pho....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e specified in the Rule made in this behalf. In this case, it is not the allegation of the Department that the appellant and the foreign supplier were related person or that there were circumstances as enumerated in the proviso to sub-Rule (2) of Rule 3 of the Customs Valuation Rules, 2007 on account of which the declared transaction value cannot be accepted. Another situation in which the declared transaction value can be rejected is that covered by Rule 12 of the Cenvat Valuation Rules when the proper officer has reason to doubt the correctness of the declared transaction value. But Rule 12 of the Cenvat Valuation Rules also provides that if after inquiry by the proper officer, the proper officer doubts the correctness of the declared transaction value and rejects the same, he is required to intimate the importer about rejection of the declared value after giving reasonable opportunity of being heard. But no such inquiry has been done in this matter. Merely on the basis of NIDB data which, as discussed above, is not relevant in this case, the declared transaction value could not be rejected. Therefore, on the issue of valuation, I agree that the decision of Member (Judicial). ....