2003 (10) TMI 560 - AT - Central Excise

Issues Involved:
1. Confiscation of ball pens under Sections 113(d) and 113(i) of the Customs Act, 1962.
2. Imposition of penalties under Section 114(iii) of the Customs Act, 1962.
3. Alleged shortage of ball pens in the consignment.
4. Alleged over-valuation of the ball pens.

Issue-wise Detailed Analysis:

1. Confiscation of Ball Pens under Sections 113(d) and 113(i) of the Customs Act, 1962:
The Commissioner of Customs, Kolkata, confiscated the ball pens under Sections 113(d) and 113(i) of the Customs Act, 1962, with an option to redeem them on payment of a fine of Rs. 75 lakhs. The consignment was meant for export with a declared FOB value of Rs. 14.37 per piece, but the Commissioner determined the FOB value to be Rs. 2.785 per piece. The Tribunal noted that the consignment was cleared from Kolkata Port but subsequently off-loaded at Visakhapatnam for detailed examination. The examination, conducted without the presence of the appellants or their representative, found a shortage of 4,44,960 pieces. The Tribunal observed that the examination notice was too short for the C.H.A. to be present and that there were no detailed inventories showing how the huge quantity of ball pens was counted. Consequently, the Tribunal extended the benefit to the appellants, ruling that the confiscation was not justified.

2. Imposition of Penalties under Section 114(iii) of the Customs Act, 1962:
A penalty of Rs. 1 crore was imposed on the proprietor of M/s. Secure International, and Rs. 10 lakhs on M/s. S.K. Kanjilal, the Customs House Agent (C.H.A.). The Tribunal found that the Commissioner did not allow cross-examination of the independent public witnesses, which was necessary for the appellants to defend their stand. The Tribunal also noted that the adjudicating authority's personal views on the quality of the pens could not be taken as expert opinion. Given the lack of evidence supporting the alleged over-valuation and shortage, the Tribunal ruled that the imposition of penalties was not warranted.

3. Alleged Shortage of Ball Pens in the Consignment:
The appellants contended that there was no misdeclaration in the quantity of goods, which were cleared by Kolkata Customs after thorough examination. They argued that the 100% examination at Visakhapatnam was conducted without their representative and lacked detailed inventories. The Tribunal found merit in this argument, noting the absence of inventories and the short notice given to the C.H.A. Consequently, the Tribunal ruled that the alleged shortage could not be accepted.

4. Alleged Over-valuation of the Ball Pens:
The appellants declared the FOB value of the ball pens as Rs. 14.37 per piece, while the Revenue determined it to be Rs. 2.785 per piece based on a market survey. The appellants argued that the ball pens were branded "CONCORD" and of higher quality than those compared by the Revenue. The Tribunal noted that the Commissioner dismissed the appellants' cost-structure and relied on market purchases of lower-quality pens. The Tribunal found that the Revenue did not compare identical goods and that the Commissioner's personal inspection of the samples could not be considered expert opinion. The Tribunal ruled that the basis for alleging over-valuation was not in accordance with the law, especially since the Revenue did not challenge the contract price or export value.

Conclusion:
The Tribunal set aside the impugned order, ruling that the confiscation of the consignment and the imposition of personal penalties were not justified. The Tribunal allowed the appeal with consequential relief to the appellants.

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