2003 (5) TMI 408 - AT - Customs

Summary

Issues Involved:
1. The claim of benefit of Notification No. 68/89-Cus., as amended.
2. Whether the value of 15 MTs of Activated Carbon is required to be added to the assessable value.
3. Whether the fee paid to Shri Kesavan Chakravarthy to the extent of Rs. 2 lakhs is required to be added in the assessable value.
4. Whether the order of confiscation and imposition of fine and penalty is required to be confirmed.

Issue-wise Detailed Analysis:

1. The Claim of Benefit of Notification No. 68/89-Cus., as Amended:
The appellants sought clearance of goods under Notification No. 68/89-Cus., claiming the equipment as "Pollution Control System/Equipment." The Commissioner acknowledged the dual function of the equipment as both a pollution control system and a solvent recovery plant. However, the claim was rejected on the grounds that the appellants failed to correlate the items with the table annexed to the notification. The Tribunal noted that the Commissioner should have provided an opportunity to the appellants to demonstrate this correlation. As the item was certified by the Ministry of Chemicals & Fertilizers and identified as pollution control equipment, the Tribunal remanded the issue back to the Commissioner for de novo consideration, allowing the appellants to prove their claim under the notification.

2. Whether the Value of 15 MTs of Activated Carbon is Required to be Added to the Assessable Value:
The Commissioner found that the appellants had instructed the supplier to purchase and load 15 MTs of activated carbon into the equipment, which was supported by documentary evidence and witness statements. Despite the appellants' contention that the activated carbon was part of the equipment, the Tribunal upheld the Commissioner's finding that the value of 15 MTs of activated carbon should be added to the assessable value, confirming the enhanced value.

3. Whether the Fee Paid to Shri Kesavan Chakravarthy to the Extent of Rs. 2 Lakhs is Required to be Added in the Assessable Value:
The Tribunal referred to the Apex Court's ruling in Apollo Tyres v. Commissioner, which held that procurement charges paid to a purchasing agent do not enhance the value of imported items. The Commissioner had acknowledged this ruling but failed to apply it correctly. Consequently, the Tribunal set aside the Commissioner's decision to include the fee paid to Shri Kesavan Chakravarthy in the assessable value, allowing the appellants' plea.

4. Whether the Order of Confiscation and Imposition of Fine and Penalty is Required to be Confirmed:
The Tribunal found no infirmity in the order of confiscation, given the clear evidence of the separate importation of activated carbon. However, the Tribunal remanded the matter concerning the quantum of fine and penalty to the Commissioner for re-evaluation. The Tribunal instructed the Commissioner to consider the appellants' eligibility for the notification benefit and the exclusion of procurement charges from the assessable value. Additionally, the Tribunal directed the Commissioner to reassess the penalty imposed on the Managing Director, ensuring a clear finding on his involvement and the necessity of the penalty.

Conclusion:
The Tribunal remanded the case to the Commissioner to re-evaluate the eligibility for the notification benefit, the quantum of fine and penalty, and the penalty on the Managing Director, while confirming the addition of the value of activated carbon to the assessable value and setting aside the inclusion of the procurement fee in the assessable value.