2015 (11) TMI 1081 - AT - Customs

Re-export the containers within six months from the date of their importation - exemption from payment of duty under Notification No. 104/94 dated 16.3.1994 - validity of evidence being computer printout showing the location of each container - whether the documents submitted by the appellant indicating the location of the containers in various ports of the world should be accepted or not as proof of re-export - Confiscation of goods - Imposition of redemption fine - Held that - location of the container varies with time. But, the printouts indicate the location to be outside India, except in case of 11 containers. We see no reason to disbelieve the statement of the Counsel that the printout clearly indicates the present location of the containers. More so when the shipping line which deals with hundreds of containers would not be expected to manipulate the website records for a few containers for which demand of duty has been raised. We, therefore, accept the evidence provided by the learned Counsel. - when the appellant himself certifies these copies, there should be no reason to reject this evidence. It would be rather unfair to expect the appellant to get a certificate from various port authorities all over the world when Revenue has not proved that the evidence submitted is false. In this view of the matter, we reject the finding of the Commissioner. Therefore, the remand is only for the purpose of determining the duty payable on the 11 containers as well as the penalties and redemption fine, which should naturally be proportionate to the amount of duty which is payable. - Decided partly in favour of assessee.

Issues:
1. Confiscation of containers and duty demand under Customs Act.
2. Execution of Bond for re-export of containers within a specified period.
3. Consideration of secondary evidence for proof of re-export.
4. Evaluation of computer printouts indicating container locations.
5. Rejection of secondary evidence by the Commissioner.
6. Remand of the case for determining duty, penalties, and redemption fine.
7. Timeframe for adjudicating the case.

Analysis:
1. The appeal challenged the Order-in-Original of Commissioner of Customs, Nhava Sheva, which ordered the confiscation of 72 containers, confirmed duty demand, and imposed penalties under the Customs Act. The case involved the import of containers by a shipping line, exempted from duty subject to re-export conditions specified in a Bond. The appellant took over the shipping line's liabilities, including the Bond obligations, leading to the confiscation order.

2. The Tribunal remanded the case to consider secondary evidence provided by the appellant regarding the proof of export of containers outside India. The Tribunal emphasized the importance of verifying container locations and recognized the validity of secondary evidence in specific circumstances where containers were shown to be outside India. The remand directed the Commissioner to consider such evidence in determining duty liabilities.

3. The Commissioner, in the impugned order, rejected the secondary evidence submitted by the appellant, citing lack of certification and details on the source of evidence. The Commissioner emphasized the requirement for shipping line documents showing lawful export of containers out of India. The order included confiscation of containers, duty demand, redemption fine, and penalties on both the appellant and the shipping agency.

4. The Tribunal evaluated the computer printouts provided by the appellant, indicating container locations globally. The Tribunal found the printouts credible, showing container statuses and locations outside India for most containers. The Tribunal rejected the Commissioner's reliance on Section 63 of the Indian Evidence Act, emphasizing the validity of self-certified evidence in absence of proof of falsity.

5. Acknowledging that the locations of 11 containers were unknown, the appellant expressed readiness to pay proportionate dues. The Tribunal accepted the secondary evidence and remanded the case solely for determining duty, penalties, and redemption fine related to the 11 containers with unknown locations, emphasizing proportionality in liabilities.

6. Given the prolonged litigation since 1999-2000, the Tribunal directed the Commissioner to decide the case within three months of the order, allowing the appellant to present documents related to the value of the 11 containers in question. The appeal was partly allowed based on the Tribunal's findings and directions for further adjudication.

7. The judgment highlighted the importance of considering secondary evidence, verifying container locations, and ensuring fairness in determining duty liabilities, penalties, and redemption fines. The remand aimed to resolve outstanding issues and expedite the case's final adjudication within a specified timeframe.

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