TaxTMI 
TaxTMI 
TaxTMI 
2022 (2) TMI 209
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....ce the value on the basis of freight and insurance charges. The show cause notice was adjudicated by order dated 29.01.2016 holding that the country of origin was Iran and not UAE as declared by the respondents; the master and the crew members were responsible for manipulating the county of origin documents; no penalty can be imposed on the respondents under Section 114AA; the value of the goods imported does not require any revision and that the employees of the company are not liable to pay any penalty. Learned Commissioner however confiscated the goods under section 111 (m) and imposed a redemption fine of Rs. 50 lakhs and penalty of Rs. 20 lakhs on the respondent under Section 125 and Section 112 of the Customs Act, 1962 respectively. Revenue is in appeal by filing Appeal C/41009/2016 on the grounds that Commissioner erred in dropping the charges regarding redetermination of value and dropping of penalty on different officers of the company. The respondents have filed cross objections in C/Cross/40946/2016. 2. The respondents i.e., M/s. Indian Oil Petronas Pvt Ltd. (IOPPL) have filed a refund claim for Rs. 7,30,00,000/-. The Assistant Commissioner vide order No.57844/2017 date....
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.... the differential 441 nautical miles between Jebel Ali, U.A.E and Kharg island, Iran remained to be included in the transaction value. Learned Commissioner has accepted such evidence and found that the freight declared was acceptable. Learned Counsel further submits that the respondents had actually paid insurance premium of Rs. 55,049/- and therefore the averment of the department that actual insurance paid cannot be ascertained is factually incorrect. 5. Coming to the issue of penalty under Section 112 on various employees of the respondent, the Learned Counsel submits that each of them have filed separate replies dealing with the allegations made against them before the Commissioner; after going through the submissions, the Commissioner came to the conclusion that the allegations in the show cause notice were based on mere suspicion and there was no evidence that the employees were involved in manipulation of the documents relating to the country of origin or had any prior knowledge that the good were shipped from Kharg Island, Iran; there is no material on record produced by the Revenue to contradict the findings of the Ld. Commissioner. 6. On the issue of confiscation, Learn....
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.... Ltd. Vs CESTAT- 2016 (337) ELT 189 (Mad.) ; Hon'ble Andhra Pradesh High Court in the matter of Commissioner Vs Panyam Cements & Minerals Industries Ltd. - 2016 (331) ELT 206 (AP) and this Bench in the case of TFL Quinn India Pvt Ltd Vs CCE Hyderabad - 2016 (339) ELT 129 (Tri.-Hyd.). He submits that the finding of Learned Commissioner on the ratio of Hon'ble Madras High Court decision in Eveready Industries (supra) is misplaced; the instant case is one of refund of security deposit and not of any duty; the principle applicable in the case of refund of duty under Section 11B is not applicable to refund of deposit and proceedings cannot be initiated under Section 11A for withdrawing the relief without preferring appeal against order granting refund. 8. Learned Counsel further submits that Commissioner (Appeals) has no jurisdiction to decide an appeal against OIO dated 29.01.2016 as the Revenue appeal was pending before the Hon'ble CESTAT; Commissioner (Appeals) has no jurisdiction to sit in appeal over an order passed by an officer of equal rank. The ratio of the Hon'ble Supreme Court in Jain Shudh Vanaspati Ltd. relied upon by Commissioner (Appeals) has no relevance to the facts an....
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....ommissioner has given a categorical finding in the OIO dated 29.01.2016 as under: "As I have already decided that the master and other crew members of the said vessel have connived with the previous Captain and the charterer and actively involved themselves in manipulating the country-of-origin documents, which was admitted by them, thus I hold that the said vessel LPG/C Sapphire-1 is liable for confiscation in terms of Section 115 (2) of the Customs Act, 1962. Penalty under Section 114AA of the Customs Act, 1962 can be levied only if the person has knowledge and intention in commission and omission of the act. There is no evidence to show that the owner of the vessel LPG / C Sapphire-1 had any prior knowledge or intention to mis-declare the port of loading or country of origin. Therefore, I am not inclined to levy and penalty under Section 114AA of the Customs Act, 1962." 12. We find that having given finding as above, Learned Commissioner proceeds to confiscate the goods. We find that Learned Counsel for the respondents submits that this is not tenable as no mala fide intention has been attributed to the respondents; he relies upon Oriental Containers Ltd. (supra) wherein it w....
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....ection 112 on M/s. IOPPL from Rs. 20, 00,000 to Rs. 2,00,000/-. 14. Coming to the valuation of goods, we find that the respondents have successfully demonstrated that the price negotiated by them is as per the spot offer letter and the commercial invoice and the terms were on CFR basis to Ennore Port, India. Having gone through the documents presented by the Learned Counsel for the respondent during the hearing, we are convinced that the price was on CFR terms and that the country of origin could not have affected the transaction value in the instant case. Coming to the alleged undervaluation on account of Insurance paid, we find that the respondents have demonstrated with documentary evidence that they have paid insurance premium of Rs. 55,049/- towards the insurance. We therefore, find that the department's averment that as freight and insurance were not available, they should be considered at the time of notional levels in terms of Rule 10 (2) of CVR 2007 is not acceptable. We find that Ld. Commissioner has correctly held as under; "I find that there is a force in the arguments of the importer / noticee M/s. IOPPL that the difference in distance between the Kharg Island,....