TaxTMI 
TaxTMI 
2019 (5) TMI 166
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.... goods. It was found that the consignment had been packed in 250 white plastic gunny bags (each bag containing 10 packets in plastic cover each packet weighing 10 kg.) all affixed with white paper sticker bearing the details: "Agar Agar Strips; N.W.;10 Kgs./Bag; Date of Produce: April 20, 2010; Date of validity: April 20,2012; Batch No.2001004021; Registration No.3500D20012. The consignment was opened and examined in presence of CHA and two representatives. Samples were also drawn and goods seized under mahazar dt. 16.6.2010. On 17.06.2010, the officers of SIIB Seaport Customs Chennai also visited / searched the appellant's firm premises in Chennai. On 7.7.2010, the samples were forwarded to Centre for Advanced Studies in Botany, University of Madras, Guindy Campus, which in its report dated 15.7.2010 opined that the sample was Agar Agar with no pathogenic micro-organisms upon culture on different media. Nevertheless, on 16.8.2010 another representative sample was sent for re-test by the Central Food Laboratory, Mysore which, in turn, sent its opinion dated 13.9.2010 stating as under : ".....the sample of agar agar does not confirm as Food Ingredient under the provisions o....
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.... order was set aside for the limited purpose of re-testing. iii. Except for the above, the order was upheld as far as valuation and suppression of facts are concerned. 6. Aggrieved against the OIA dt. 27.10.2011, all the three noticees namely CMT, A.K.S. Mohammed Farook, A.K.S. Haroon Rasheed filed Appeal Nos.C/371-373/2011 respectively which are now before this Tribunal. While deciding the stay application, vide Stay Order No.175-177/2012 dt. 22.3.2012, the Tribunal inter alia directed pre-deposit of Rs. 2 lakhs. The Tribunal also inter alia passed the order as under : "The appellants plead that because of the delay in release of the goods, the goods are deteriorating and is likely to become unfit for human consumption shortly. They pray for quick relief in the matter. In view of this, we direct the adjudicating authority to pass orders on priority basis and decide the issue whether the goods in question are fit for human consumption preferably within a period of 15 days from today, and if found fit to release the goods on payment of redemption fine as originally decided by the adjudicating authority. This order is without prejudice to the rights of the appell....
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....lso correct. The quantum of Rs. 25,000/- imposed as redemption fine is fair as the value of goods is Rs. 2,17,478/-. The penalty of Rs. 10,000/- under Section 112 (a) is also nominal and need not be interfered with. As regards the refund of the amount involved since the appellant himself is stating that the LA was not correct in taking up the entire issue when the appeal is pending before Hon'ble Tribunal, I find that any discussion of refund of duty amount would be incorrect at this stage till the final outcome of the appeal before CESTAT. As regards, Rs. 3000/- it is directed that the LAA may verify the facts once again and if indeed the amount had not been spent towards the forwarding charges of the samples for test, the same may be refunded as per law. Hence appeal C/41002/2014 filed by appellant CMT. 8.1 When the matter came up for hearing, on behalf of appellants, Ld. Counsel Shri J. Shankarraman reiterated the grounds of appeal in respect of all the three appellants and also made oral and written submissions which can be summarised as under : 8.2 The valuation adopted by the Department is contrary to law and factually incorrect. The purchase price was Rs. 8....
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....sultant proceedings that have followed, the goods were got retested by the CFTRI, Mysore, who vide their report dt. 19.04.2012 opined that the sample does not conform to the standards of Food Safety and Standards (Packaging and Labelling) Regulation, 2011 for the reasons that since date of expiry declared in the label is dated 20.04.2012 the shelf life of the product is less than 60% and also that manufacturer's address is not given as required. Based only on these report, the Additional Commissioner of Customs proceeded to do de novo adjudication of the matter and vide order dt. 23.05.2012 held that goods expired on 20.04.2012, therefore they cannot be consumed and cannot be released, hence liable for confiscation under Section 111 (d) of the Customs Act, 1962. The adjudicating authority confiscated the consignment and gave option to pay a redemption fine of Rs. 25,000/- in lieu of confiscation, however only for the purpose of re-test. However, we find that the authority has gone beyond the scope of the direction given by CESTAT in the Stay Order dated 22.03.2012 and enhanced declared value of the goods, this time from Rs. 82.87 per kg to Rs. 437.71 per kg. and also imposed penalt....
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....mption fine, which was subsequently torpedoed over by the Commissioner (Appeals) by ordering further retest. We are just not able to reconcile with the humongous delay of more than 16 months in respect of the live consignment, for a journey from import stage to orders by the Commissioner (Appeals) for goods which admittedly had a limited shelf life. This sad episode does not stop here. The Stay Order of CESTAT Chennai dated 22.03.2012 had categorically directed the adjudicating authority to decide the issue whether the goods are fit for human consumption "preferably within a period of 15 days from today". However, the said authority took another 60 days to decide this aspect and further, choose to go beyond the scope of the directions of the Tribunal to re-adjudicate all the aspects of the import once again. In the first place, the department's lethargy, in particular, the 16 months delay discussed supra, has resulted in such a piquant situation that when the sample was sent for re-test, CFTRI Laboratory could only point out that the goods have less than 60% shelf life since they expired on 20.04.2012. To add insult to injury, the adjudicating authority in his unauthorised re-adjud....
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....18 (359) ELT 270 (Tri.-Chennai) (iii) Sarda Energy and Minerals Ltd. Vs CCE Raipur - 2018 (359) ELT 262 (Tri.-Del.) This being so, that portion the Commissioner (Appeals) Order upholding such enhancement of value from Rs. 82.87 per kg. to Rs. 437.71 per kg. based on NIDB data is therefore set aside. By implication, the goods cannot then be held liable to confiscation under Section 111 (m) of the Act on the charge of undervaluation. In the event, that part of the LAA upholding the order by the original authority of confiscation of impugned goods under Section 111 (m) ibid cannot be sustained and is therefore set aside. In consequence, the imposition of redemption fine of Rs. 25,000/-under Section 125 ibid is also set aside. C/41022/2014 is allowed on above terms with consequential benefits as per law. 10.8 The penalty of Rs. 10,000/- imposed on CMT under Section 112 (a) ibid on the charge of having rendered the goods liable to confiscation under Section 111 (d) and (m) ibid will also have no legs to stand upon and hence that part of the impugned order of LAA upholding such penalty is also set aside. 10.9 However, we do not interfere with the observation of the Comm....