2009 (9) TMI 862 - AT - Customs

Redemption fine - penalty - valuation of imported old/used Photo Copiers/Computers - The Adjudicating Authority did not accept the value as declared by the appellants and subjected the goods for Chartered Engineer s inspection and for valuation. The Chartered Engineer appointed by the revenue appraised the subject goods and gave certificate regarding the value of the goods - Held that - The country of origin, the Model No. etc. is of no consequence, as the goods which were imported and cleared are old and used computers is accepted by the revenue in the Order-in-Original. If that be so, the facts are not different, as the fact in all these cases, is that there is only import of old and used Photo Copiers and Computers. The Tribunal found that the value as fixed by the Chartered Engineer s certificate is an enhanced value from the one declared by the assessee. That duty was imposed reckoning the value as fixed by the Chartered Engineer s certificate. Therefore, the redemption fine imposed being on such rate as fixed in the certificate issued by the Chartered Engineer, there was escalation in the redemption fine and penalty imposed. Thus, the Tribunal has given its own reasons in the matter of fixing a rate at which the fine should be imposed. The penalty imposed by the lower authorities which is 5% of the value of the imported goods as has been certified by the Chartered Engineer is upheld and the redemption fine is to be calculated and collected to the extent of 15% of the value as has been certified by the Chartered Engineer in all these cases. Appeal allowed - decided in favor of appellant.

Issues Involved:
1. Imposition of redemption fine and penalties on the import of old/used Photo Copiers and Computers.
2. Assessment of the declared value of imported goods and subsequent valuation by a Chartered Engineer.
3. Determination of the margin of profit and the legality of the imposed fines and penalties.

Detailed Analysis:

1. Imposition of Redemption Fine and Penalties:
The core issue revolves around the imposition of redemption fine and penalties on the import of old/used Photo Copiers and Computers. The appellants imported these goods and filed a Bill of Entry for home consumption clearance. The Adjudicating Authority did not accept the declared value and subjected the goods to a Chartered Engineer's inspection and valuation. The Chartered Engineer's valuation was accepted by the importers, who then discharged the duty liability. The Adjudicating Authority confirmed the enhanced value, held the goods liable for confiscation, and imposed redemption fines and penalties.

2. Assessment of Declared Value and Chartered Engineer's Valuation:
The Adjudicating Authority, upon not accepting the declared value by the appellants, subjected the goods to valuation by a Chartered Engineer. The importers accepted the Chartered Engineer's valuation and discharged the duty liability accordingly. The Adjudicating Authority then confirmed the enhanced value and imposed fines and penalties, which were upheld by the Commissioner (Appeals).

3. Determination of Margin of Profit and Legality of Fines and Penalties:
The appellants argued that there was no determination of the margin of profit and cited previous decisions of the Tribunal and various High Courts, which had settled the law regarding the imposition of redemption fines and penalties. The learned Counsel for the appellants referenced cases such as Office Devices, Sai Copiers, and others, asserting that the imposition of fines and penalties was not in accordance with established legal precedents.

Tribunal's Consideration and Decision:
The Tribunal considered the submissions from both sides. It acknowledged the argument by the learned SDR that each case must be considered on its facts and circumstances. However, it noted that the imported goods were consistently old/used Photo Copiers and Computers, making the facts of these cases similar. The Tribunal found that the Adjudicating Authority had imposed penalties amounting to 5% of the value certified by the Chartered Engineer, which was upheld by the Commissioner (Appeals).

Regarding the redemption fine, the Tribunal noted that the Adjudicating Authority had imposed a fine of 35% of the value, which was upheld by the Commissioner (Appeals). However, the Tribunal found this to be inconsistent with the law as settled by the Hon'ble High Court of Kerala in the case of Office Devices. The Tribunal emphasized the need to maintain consistency in the imposition of fines and penalties to avoid arbitrariness and discrimination.

Modification of the Order:
The Tribunal modified the order of the Commissioner (Appeals), ruling that the redemption fine should not exceed 15% of the value of the imported goods as certified by the Chartered Engineer. It upheld the penalty imposed by the lower authorities, which was 5% of the value of the imported goods.

Conclusion:
The Tribunal concluded that the penalty of 5% of the value of the imported goods as certified by the Chartered Engineer was upheld, and the redemption fine was to be calculated and collected to the extent of 15% of the value as certified by the Chartered Engineer in all these cases. All appeals were disposed of accordingly.

Operative Portion:
The operative portion of the order was pronounced in open court on the conclusion of the hearing.

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