2010 (12) TMI 336 - AT - Customs

DEPB - Confiscation - the BARC s report is authentic and hence there is no room for doubt - The alternative test reports produced by the appellant admittedly pertain to samples drawn by themselves without involving the department. Whether the redemption fine of Rs. 3.6 lakhs imposed by the Commissioner can be considered to be reasonable - The fine imposed by the Commissioner appears to be around 15% of the value of the goods, which cannot be considered to be unreasonable - The Commissioner imposed a penalty of Rs. 1.25 lakhs on the appellant under Section 114 of the Act, which works out to 5% of the FOB value of the goods - Appeal is dismissed

Summary

Issues:
1. Export of nuclear grade graphite products without a valid license.
2. Confiscation of goods under the Customs Act.
3. Validity of alternative test reports provided by the appellant.
4. Legality of redemption fine and penalty imposed by the Commissioner.

Analysis:

Issue 1: Export of nuclear grade graphite products without a valid license
The appellant, engaged in the export of graphite products, attempted to export nuclear grade graphite without the necessary license from the Department of Atomic Energy (DAE). The goods were seized by customs authorities under Section 110 of the Customs Act due to lack of proper authorization. The Commissioner proposed confiscation of the goods and penalties under various sections of the Act. The appellant produced licenses from DAE for export, but the adjudicating authority rejected them, leading to the confiscation of the goods and imposition of fines.

Issue 2: Confiscation of goods under the Customs Act
The Commissioner ordered the confiscation of the goods under Section 113(d) of the Customs Act due to the absence of a valid export license for nuclear grade graphite. A redemption fine of Rs. 3.6 lakhs and a penalty of Rs. 1.25 lakhs were imposed on the appellant. The Commissioner's decision was based on the authenticity of the BARC's test report, which indicated the Boron concentration in the goods to be below the permissible limit. The fine and penalty were determined in relation to the total value of the goods and were deemed reasonable by the Commissioner.

Issue 3: Validity of alternative test reports provided by the appellant
The appellant submitted alternative test reports from various agencies to challenge the BARC's findings. However, these reports were drawn without the involvement of the customs department and were deemed unreliable. The BARC's report, conducted in the presence of the exporter's representatives, was considered authentic and conclusive. The appellant's attempts to question the validity of the BARC report were dismissed.

Issue 4: Legality of redemption fine and penalty imposed by the Commissioner
The Commissioner's decision to impose a redemption fine and penalty was upheld as reasonable. The fine amounted to around 15% of the total value of the goods, while the penalty constituted 5% of the FOB value. The Tribunal found no grounds to interfere with the Commissioner's order, affirming the legality of the fines and penalties imposed.

In conclusion, the appeal was dismissed, and the decision of the Commissioner regarding the confiscation of goods and imposition of fines was upheld by the Tribunal.