2010 (12) TMI 668 - AT - Central Excise

EPCG scheme - Confiscation - Whether natural justice was denied to the appellants by the adjudicating authority - In the present case, the learned counsel submitted that the appellants could not reply to the show-cause notice as they were not allowed to cross-examine the witnesses - Once the case is before the adjudicating authority, the noticee is at liberty to adduce evidence to support his own defence and/or to disprove the department s allegations - it can be held with no iota of doubt that the adjudicating authority duly observed the principles of natural justice whether the goods were liable to confiscation under Section 111(d) of the Customs Act - The certificate of the Chartered Engineer, which was produced by the importer along with their Bills of Entry, was itself dubbed as invalid by the Chartered Engineer himself vide statement dated 26-3-1997 of Shri S.M. Bhola - The relevant EXIM Policy (1992-97) required the minimum residual life of second-hand machines to be ten years for zero duty imports - Decided against the assessee whether the machines under import were liable to be confiscated in terms of Section 111(m) of the Act - for the applicability of Section 111(m), there can be no differentiation between the goods in respect of which Bills of Entry were filed and other goods under transhipment for which no Bills of Entry were filed - It is not in dispute that the goods under import were not of the same specifications as those of the goods mentioned in the purchase order - Decided against the assessee whether some of the items imported by KSL along with the machines without mentioning the same in the import documents are liable to confiscation under clause (l) of Section 111 of the Act - The redemption fines determined by the Commissioner in lieu of confiscation of the goods are apparently proportionate to the lower CIF values estimated in the relevant punchnamas and not to the declared higher CIF values - Held that value could not have been revised by the Commissioner is agreed to by me since there was no proposal to revise the value in the show-cause notice by due rejection of transaction value and proposal to reduce it under a specific rule with supporting evidence - In the absence of specific proposal and conclusions, I agree that value as declared has to be accepted and not because there is no evidence - Appeal is dismissed

Summary

Issues Involved:
1. Denial of natural justice.
2. Liability of goods for confiscation under Section 111(d) of the Customs Act.
3. Liability of goods for confiscation under Section 111(m) of the Customs Act.
4. Liability of certain items for confiscation under Section 111(l) of the Customs Act.
5. Determination of redemption fines and penalties.
6. Validity of Zero Duty EPCG Scheme benefit denial.

Detailed Analysis:

1. Denial of Natural Justice:
The appellants argued that they were denied natural justice as they were not allowed to cross-examine the witnesses whose statements were relied upon in the show-cause notice. However, the Tribunal noted that KSL did not file a reply to the show-cause notice despite numerous opportunities and a specific directive from the High Court. The Commissioner had considered their request for cross-examination but KSL failed to specify the persons to be cross-examined. The Tribunal held that cross-examination is not a matter of right and must be claimed with valid reasons. Therefore, it was concluded that the adjudicating authority duly observed the principles of natural justice.

2. Liability of Goods for Confiscation under Section 111(d):
The Tribunal agreed with the Commissioner's finding that the Zero Duty EPCG licence produced by KSL was not applicable to the goods under import. The goods imported did not match the description in the purchase order, and the discrepancies in age, value, and residual life of the machines were not satisfactorily explained. The relevant EXIM Policy required a minimum residual life of ten years for zero duty imports, which was not established. Thus, the goods were imported without a valid licence and were liable to confiscation under Section 111(d) of the Customs Act.

3. Liability of Goods for Confiscation under Section 111(m):
The Tribunal examined whether the goods were liable to confiscation under Section 111(m) for misdeclaration. It was found that the goods did not correspond in respect of value or other particulars with the entry made under the Act. Although the show-cause notice did not specifically allege misdeclaration of value, the goods were misdeclared in terms of description, year of manufacture, and residual life. Therefore, the goods were liable to confiscation for misdeclaration of description under Section 111(m).

4. Liability of Certain Items for Confiscation under Section 111(l):
The Tribunal upheld the confiscation of sprockets, chains, and new bearings found in the consignment, which were neither covered by the purchase order nor mentioned in the import documents. These items were in excess of those included in the entry made under the Act and were liable to confiscation under Section 111(l).

5. Determination of Redemption Fines and Penalties:
The redemption fines and penalties determined by the Commissioner were proportionate to the lower CIF values estimated in the relevant punchnamas and not to the declared higher CIF values. The Tribunal sustained the fines and penalties as the Revenue did not file an appeal for enhancement.

6. Validity of Zero Duty EPCG Scheme Benefit Denial:
The Tribunal upheld the Commissioner's order denying the benefit of the Zero Duty EPCG Scheme to KSL. The goods imported were not covered by the EPCG licence due to discrepancies in their description and value. The Tribunal also noted that the customs authorities returned the EPCG licence to the DGFT for cancellation, and any argument for amending the licence at this stage was not tenable.

Conclusion:
The Tribunal upheld the Commissioner's order on all counts, including the confiscation of goods under Section 111(d) and (m), confiscation of new bearings, sprockets, and chains under Section 111(l), denial of Zero Duty EPCG Scheme benefit, and the imposition of penalties. The appeals were disposed of accordingly.