2010 (7) TMI 375 - AT - Customs

Waiver of pre-deposit confiscation and penalty - importer did not produce certificate of Central Pollution Control Board (CPCB) for importation of the goods - test report states that the material was non-toxic and non-hazardous - Commissioner s order, agreed with findings of the scientific agency - confiscation ordered by the Commissioner on the ground of CPCB certificate having not been produced by the importer is prima facie, unsustainable Pre-deposit waived

Summary

Issues:
1. Confiscation of imported goods by the Commissioner
2. Enhancement of goods' value for assessment
3. Determination of fine for redemption of goods
4. Imposition of penalty on the importer
5. Appeal against enhancement of goods' value and imposition of fine and penalty

Issue 1: Confiscation of imported goods by the Commissioner
The judgment involves an appeal against the Commissioner's order confiscating goods imported by the assessee. The Commissioner's order was based on the importer's failure to produce a certificate from the Central Pollution Control Board (CPCB) for the imported goods, specifically "Zinc Dross Shelf." However, a test report indicated that the goods were non-toxic and non-hazardous, with no disagreement in the Commissioner's order with the findings of the scientific agency. The Tribunal found that the confiscation on the grounds of the CPCB certificate not being produced was unsustainable, leading to a waiver of pre-deposit and stay of recovery regarding the penalty imposed under Sec. 112 of the Customs Act.

Issue 2: Enhancement of goods' value for assessment
The Tribunal noted that the goods were in the custody of the department, eliminating the need for pre-deposit of any duty. Additionally, there was no quantification of duty in the impugned order. The challenge in the assessee's appeal was against the enhancement of the goods' value and the imposition of a fine and penalty. The Tribunal's prima facie view was that the imported goods were non-hazardous, as supported by the test report, leading to a dismissal of the Revenue's application for stay of operation of the Commissioner's order.

Issue 3: Determination of fine for redemption of goods and imposition of penalty
The Commissioner's order not only involved confiscation but also determined a fine of Rs. 6 lakhs under Sec. 125 of the Customs Act for redemption of the goods and imposed a penalty of Rs. 2 lakhs on the importer. The limited prayer in the Revenue's appeal was not to grant the importer the option to redeem the goods due to the perceived hazardous nature of the goods. However, the Tribunal's analysis of the test report and lack of disagreement with the scientific agency's findings led to the conclusion that the goods were non-hazardous, rendering the confiscation unsustainable.

In conclusion, the judgment by the Appellate Tribunal CESTAT, Mumbai addressed the issues of confiscation of imported goods, enhancement of goods' value for assessment, determination of fine for redemption of goods, imposition of penalty on the importer, and the appeals against these decisions. The Tribunal found the confiscation based on the absence of a CPCB certificate unsustainable due to the non-hazardous nature of the goods, leading to a waiver of pre-deposit and a stay of recovery regarding the penalty. The Tribunal's analysis highlighted the importance of scientific evidence in determining the nature of imported goods and the subsequent legal implications.