TaxTMI 
TaxTMI 
2021 (8) TMI 999
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....oceeds towards the duty liability and also imposed penalty of Rs. 2,00,000/- on the appellant under Section 112(a) of the Customs Act, 1962. 3. Briefly the facts of the present case are that the appellant is the holder of import export code and is engaged in the business of import and export of earth moving equipments. The appellant imported earth moving machinery parts from USA through Bangalore Airport and filed two bills of entry bearing No.004350 and 004354 dated 19.2.1993 for clearance through their customs house agent M/s. Pavan Enterprises. However, the Officers seized the goods on 19.3.1993 on the allegation that the imported goods have been manufactured by KOMATSU in Japan and the appellant has failed to produce the country-of-origin certificate. The appellant thereafter filed a Writ Petition No.9028/1993 before Hon'ble High Court of Karnataka seeking a direction for release of goods seized during the course of investigation. Hon'ble High Court by an order dated 12.4.1993, ordered for release of goods on provisional basis on payment of appropriate duty determined within two weeks. However, it is the case of the appellant that the aforesaid order was not complied w....
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.... filed an appeal along with the application for stay before this Tribunal. The Tribunal vide order dated 5.10.2016 dismissed the appeal preferred by the appellant on the ground that the Tribunal has no power to order for compensation under the appellate jurisdiction. Thereafter, the appellant filed appeal challenging the Final Order of the Tribunal before the Hon'ble High Court of Karnataka and the Hon'ble Karnataka High Court vide its order dated 29.1.2021 remanded the appeal with a direction to decide the issue afresh by adverting to the issue of validity of confiscation proceedings and consequent sale by the Department and also decide the issue with regard to restitution of value of goods to the appellant. 4. Heard both the parties and perused the records. 5. Learned counsel for the appellant submitted that the impugned order is not sustainable in law and the same has been passed without properly appreciating the facts and the law and the binding judicial precedent on identical issue. He further submitted that the imported goods having been auctioned without prior notice to the appellant especially when the said goods were under the custody of the Customs Offic....
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.... ELT 3 (SC). He also submitted that the department having auctioned the goods, it is deemed that the value of the goods auctioned should be treated as inclusive of duty as the value determined for the purpose of assessment by the adjudicating authority was without customs duty and the same is always payable by the importer only after assessment. He further made submission that the auction of the goods illegally for a lesser value will not entitle the department to recover or adjust the amount from the auctioned value as the auctioned value of the goods should always be the value of the goods determined plus the duty. He also submitted that the department having illegally auctioned the goods in contravention of the provisions of Section 48 of the Customs Act, 1962 is neither entitled for claiming duty nor the penalty for violation / contravention, if any, on the part of the appellant as the goods have never been assessed for any duty or penalty payable by the appellant. Hence, the appellant is entitled for return of the value of the imported goods as determined by the department along with interest. Learned counsel also made submissions regarding the allegation of undervaluation mad....
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....vs. CCE, Bhubaneswar-I: 2010 (252) ELT 523 (Tri.- Kolkata) • Exide Industries vs. CC (I), Mumbai: 2010 (252) ELT 447 (Tri.-Mum.) • Eicher Tractors Ltd. vs. CC, Mumbai: 2000 (122) ELT 321 (SC) 5.1 Further, the learned counsel submitted that the Tribunal in the present facts and circumstances has the power to grant refund of auctioned goods. The goods worth Rs. 28,26,001/- was seized on the allegation of mis- declaration of country of origin and undervaluation and the same has been auctioned by the department for Rs. 20,000/- in a haste manner that too without prior notice and without seeking permission of the Tribunal where the appeal was pending on the date of auction. Since the issue was sub- judice as on the date of auctioning of the seized goods, the responsibility is cast on the department to refund the value of the imported goods as determined by the Department. He also submitted that it is settled law that once the goods are seized / confiscated and the proceedings against the same are pending before any authority or Court, then the only option available to the department is to obtain necessary permission from the Court before whom the proce....
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....p; On the other hand, the learned Authorised Representative reiterated the findings of the impugned order and she further submitted that in the present case, the importer could not produce the country-of-origin certificate as required under Rule 10 Clause 1(b) of the Customs Valuation Rules. She further submitted that after the decision of the Hon'ble High Court dated 12.4.1993, the department informed the importer to get the goods cleared by executing a PD Bond but the party did not respond to the same despite High Court order. She further submitted that the Tribunal vide its Final Order No.129/2002 dated 31.1.2002 remanded the matter back to the original authority to examine the issue afresh with regard to the country of origin and the same was dealt with by the Commissioner in the de novo order dated 1.5.2006. Regarding the sale / auction by the department, the learned AR submitted that in spite of their best efforts they could not find out the records pertaining to the auction / sale of the seized goods and in the absence of the records, she is unable to submit as to whether the procedure was followed or not. Regarding restitution of value of the goods to the appellant, the lea....
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....y permission from the court before whom the proceedings are pending and also to issue notice to the assessee from whose possession goods have been seized before auctioning the goods. In this regard, I rely upon the decision of Shilp Impex vs. UOI: 2001 (128) ELT 54 (Del.) wherein it has been held that the assessee is entitled to receive the value of the goods as fixed by the department when the goods have been auctioned / sold by the department without notice at much lesser price than the one declared by the assessee and much less than the value of the goods adjudicated by the authorities. This decision of the Tribunal has been upheld by the Hon'ble apex court in Shilp Impex vs. UOI: 2002 (140) ELT 3 (SC). Further, in the case of CCE, Allahabad vs. Pidilite Industries Ltd.: 2007 (212) ELT 38 (Tri. - Del.), the Tribunal set aside the order of confiscation of the seized goods without issuing the notice to the assessee. The said decision of the Tribunal was upheld by the High Court of Allahabad as reported in 2014 (309) ELT 598 (All.) wherein in para 6 and 7, the Hon'ble High Court has held as under: "6. It may be mentioned that Hon'ble Supreme Court in the case of North....