TaxTMI 
TaxTMI 
TaxTMI 
2023 (6) TMI 912
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....against the Order-in-Original passed by the Commissioner of Customs (Import), Mumbai dated 28.09.2007, upholding the recovery of differential duty from the appellant to the tune of Rs. 20,31,302/- on imported hydraulic pumps under Section 28 of the Customs Act, 1962 Hereinafter referred to as 'the Act of 1962'/'the Act'; and rejected the application for rectification. 3. Shorn of unnecessary details and briefly put, the relevant background aspects of the matter are that M/s David Brown Hydraulic Ltd., U.K. Hereinafter referred to as 'the manufacturer.' was in the business of manufacturing hydraulic pumps. The appellant had initially approached them to secure authorized distributorship but, the request was declined because M/s S & H Universal, London Hereinafter referred to as 'the supplier.' had already entered into contract for sole distributorship for India and South East Asia. Subsequently, the appellant entered into a sub-dealership arrangement through the supplier. 3.1. The matter in issue pertains to the period 2001- 2003, when the appellant cleared shipment of hydraulic pumps manufactured by the said manufacturer and imported from the supplier. 3.2. A Show Cause Notice 'S....
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.... a deliberate misstatement and suppression of facts regarding the actual transaction value of the hydraulic pumps on the part of the importer with the malafide intention to evade the Customs duty legitimately payable by them, the extended period for demand of Show Cause Notice is justified. 27. Since the importer had imported the said pumps by under-invoicing them in collusion with M/s. S & H Universal and thus attempted to evade customs duty, the said goods are liable for confiscation under Section 111(m) of the Customs Act, 1962. However, I find that the goods have already been cleared and are no longer available for confiscation. Therefore, the importer is liable to pay a redemption fine in lieu of confiscation under Section 125 of the Customs Act, 1962. It was observed by the Tribunal in case of M/s. Venus Enterprises Vs. Commissioner of Customs, Chennai [2006 (199) ELT 661 (Tri - Chennai)] that fine is imposable even if the goods are not available for confiscation. In the above said judgment, it was observed by the Tribunal in Para 5 that " ........ we cannot accept the contention of the appellants that no fine can be imposed in respect of goods which are already cleared. O....
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....e the Tribunal challenging the redetermination of assessable value of goods, levy of differential duty, redemption fine in lieu of confiscation, and penalty. The Tribunal, by the impugned order dated 06.11.2018, partly allowed the appeal and though upheld the recovery of differential duty but set aside the redemption fine and penalty. The relevant parts of impugned order dated 06.11.2018 could be usefully reproduced as under: - "7. There is no evidence on record that the value declared by the importer is not the price actually paid for the goods. Had the circumstances which prevailed prior to 1998, depicted in the decision of the Hon'ble Supreme Court in re Eicher Tractors Ltd and in accord thereof, be found to have justified the invoking of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 for determination of the assessable value, it would well have been within the scheme of law to confiscate the goods by resort to section 111 (m) of Customs Act, 1962. The fresh determination would have been a consequence of non-compliance with section 14 of Customs Act, 1962 and rule 4 (2) of the said rules arising from deliberate misrepresentation of the transaction....
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....n under Section 111 lacked the sanction of law. The Tribunal, while deciding the said application by its order dated 17.07.2019, held that mis-declaration pertained to the entries made at time of import and confiscation was held to be unwarranted following a previous decision but, the elements for invoking the extended period were entirely different and the submissions made during the course of hearing of the main matter did not persuade them that the ingredients were not lacking. The Tribunal also observed that this aspect was sufficiently amplified in its principal order. Hence, the Tribunal rejected the application while observing as under: - "5. Redemption fine was set aside by placing reliance upon the decision in Commissioner of Customs (Import), Mumbai v. Finesse Creation Inc. [2009 (248) ELT 122 (Bom)]. The mis-declaration, referred to in the eighth paragraph of the said order, pertains to the entries made at the time of import and, therefore, held that confiscation was not warranted. The elements prescribed for invoking the extended period are entirely different and the submissions made on behalf of the appellant during the course of the hearing did not persuade us that ....
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....n issuing SCN dated 26.09.2006. 9. Section 28(1) of the Act of 1962, as applicable in relation to the SCN dt. 26.09.2006, had been as under: - "28. Notice for payment of duties, interest, etc.- (1) When any duty has not been levied or has been short-levied or erroneously refunded, or when any interest payable has not been paid, part paid or erroneously refunded, the proper officer may, - (a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, within one year; (b) in any other case, within six months, from the relevant date, serve notice on the person chargeable with the duty or interest which has not been levied or charged or which has been so shortlevied or part paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: Provided that where any duty has not been levied or has been short-levied or the interest has not been charged or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts by th....