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2023 (6) TMI 19
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....nclear description appears to have prompted the Revenue to open the containers which later on came to be examined by the Dock Officers. It appears that what was found was only "PVC Flex Fabrics" instead of the declared Polyethylene Laminated in Rolls, which according to them attracted Anti Dumping Duty under Notification No. 79/2010-Cus. dated 30.07.2010. It thus appears that the following doubts/suspicion emerged thereafter: - • Similar Bills-of-Entry were cleared by the respondent declaring the unit price as USD 0.65 and USD 0.60 per kg. • The Bills-of-Entry under dispute also appeared to be undervalued. • The net weight of the fabrics imported under both the Bills-of-Entry is 41375.80 kgs. whereas the importer had declared the total net weight of the consignment as 32400 kgs., resulting in an excess import of 8975.80 kgs. of fabrics. • As per Notification No. 82/2011-Cus. dated 25.08.2011, PVC Flex Films originated from China attracted Anti Dumping Duty (ADD) of USD 0.538 per kg. and as such, the impugned goods are amenable to ADD as per the aforesaid Notification. • The ADC (Gr-2) in F.No. S.Misc 197/2011-SIIB per....
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.... • The documents produced before him, like Purchase Order dated 23.09.2011, clearly described the product. • Specifications of the product are very clear and hence, prima facie, no fault could be found with the declaration by the respondent. • The fact of wrong shipment was communicated by the respondent to the supplier on 02.12.2011, which was accepted by the supplier on 05.12.2011, [no such communication/acknowledgement furnished before us by either of the parties] • Supplier replied per fax dated 08.12.2011 to the effect that the shipment was for another importer. [our observation: but however, details of such another importer could have been very well furnished before Adjudicating Authority / Commissioner (Appeals), which is apparently not done] • The supplier regretted for the mistake. • With regard to misdeclaration, it is observed that the packing list and the Bill-of-Lading clearly and correctly mentioned the total gross weight and net weight. • Excess quantity found during physical examination may be due to wrong supply, for which respondent could not be held responsible as the same ....
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....o the correspondence between the supplier and the respondent. Apparently, no concrete evidence was filed by the importer either before the Adjudicating Authority or even before us. Consequently, the unilateral action taken by the Department in the past clearance was held unsustainable. 5.3 Regarding the present appeal, the learned Commissioner (Appeals) holds that the Department should have allowed re-export, as requested, considering the wrong supply. The sum and substance of the order is that the appeal filed by the respondent-importer was allowed with the direction to the respondent to re-export the goods without any payment of fine and penalty. However, if the respondent was interested in clearing the goods for home consumption as per the request of the supplier, then the order passed by the lower authority would be upheld with modification; the action taken by the lower authority was held to be not legal and proper and the Order-in-Original was set aside, with a direction to the lower authority to issue necessary detention certificate for waiver of demurrage and container detention charges. 6. The above has thus resulted in the present appeal. 7. Heard Shri S. Balakum....
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....y not offer redemption fine. • The order of the Commissioner (Appeals) directing the re-export of impugned goods without fine and penalty is not in accordance with the appellate power and Section 125(1) of the Customs Act, 1962. • Deletion/reducing of penalty under Sections 112(a) and 114A of the Customs Act, 1962 was not legal and proper. • Interest of the importer is not a consideration for clearing two consignments and hence, Commissioner (Appeals) erred in giving opportunity to the importer, whose interest was to be ascertained. • Penalty under Section 114A ibid. is mandatory in nature. • The goods in question were never seized and the importer was offered provisional release which was declined by them, and they preferred appeal. • Adjudication order having been passed, it is incumbent on the importer to pay detention/demurrage charges in terms of statute, for which no authority is empowered to meddle with, which did not depend upon the outcome of their appeal. • Thus, there was no question of issuing detention certificate for waiver of demurrage and container charges. • Comm....
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....9.2022 - CESTAT, Chennai] Discussion of the finding as to violation of principles of natural justice: 11.1 We find, at the outset, that the impugned Order-in-Appeal insofar as the same relates to violation of principles of natural justice, is not sustainable, for the following reasons: - • Finding by the learned Commissioner (Appeals) as to violation of natural justice appears to be independent of the pleadings of the importer. • Nothing was argued before us nor is there any plea on this, in the synopsis filed during the hearing. • In any case the respondent has categorically admitted in the synopsis filed before us that they had waived issue of Show Cause Notice, but they did participate in the personal hearing before the Adjudicating Authority. • They also admit to have claimed before Adjudicating Authority, to only permit re-export of goods in question, which is also on record. • The learned Commissioner (Appeals) has extracted the grounds of appeal before him and from those grounds also, we do not see any specific attack made by the respondent as regards violation of principles of natural justice is concerne....
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....by the importer! 12.4 During personal hearing also, they appear to have made only formal representation, again perhaps trying to avoid the possible further probing/digging by the Adjudicating Authority, except requesting for permission to re-export. We do not see any reference to the e-mail sent by the supplier admitting wrong supply anywhere in the order of the Adjudicating Authority, though we are not suspecting the very existence of such e-mail from supplier at that stage. We do not want to guess here, that it was because they were not filed since the only ground urged was for re-export. 12.5 That makes it clear that their claim of 'wrong supply' could possibly be an after-thought, which gave birth to the e-mail from supplier! It is thus clear that the Department or at least the Adjudicating Authority never had any chance to address/examine this issue of 'wrong supply' and hence, there was nothing for the Adjudicating Authority to prove or disprove on this, at the time of adjudication. 13. When an irregularity was pointed out, instead of discharging the same, the respondent simply evaded by requesting for re-export. So, if we go by the findings of the Commissioner (Appe....