2017 (10) TMI 815 - AT - Customs

Confiscation - excess goods found during examination - misdeclaration - Held that - the goods were examined during the period from 25.07.2007 to 07.08.2007, after de-stuffing and seggregation and independent panchas were present during this process of examination. Hence, the contention of the appellants that the importer was not represented during the examination is untenable - the contention of the appellants that there was excess of only 2.15 MT in the consignment is not tenable as the quantity of excess scrap was in respect of Copper Scrap, Copper Wire Scrap, Brass Scrap and Aluminium Scrap. Hence, the adjustment of such scrap against the heavy melting scrap found less would be illogical as the scraps are of different kinds with different values and rates of duty. The contention of the appellants that surveyor report should be accepted as evidence in absence of testing of goods are also not convincing. In the present case, there is clear misdeclaration of quantity of distinctly different types of scrap having different values - Confiscation upheld - the quantum of redemption fine and penalty reduced. Appeal allowed in part.

Issues:
1. Misdeclaration of imported goods quantity.
2. Examination process and findings.
3. Confiscation, redemption fine, and penalties imposed.
4. Arguments by the Appellant and the Revenue.
5. Legal precedents and their applicability.
6. Decision on the appeal and modifications to fines and penalties.

Misdeclaration of imported goods quantity:
The appellants imported goods but discrepancies were found during examination compared to the declaration. Various scrap quantities differed significantly from the bill of entry, leading to excess goods valued at ?94,04,795. The Commissioner ordered confiscation of the excess goods and imposed fines and penalties on both appellants.

Examination process and findings:
The examination was conducted in the presence of the CHA and Appellant No. 1. The appellants argued that the heavy melting scrap quantity adjustment should reduce excess, but the Tribunal found this illogical due to different scrap types. The surveyor report was challenged by the appellants but was deemed irrelevant as it was arranged after goods clearance. The Tribunal upheld the examination report and rejected the appellants' objections.

Confiscation, redemption fine, and penalties imposed:
The Tribunal upheld the confiscation of excess goods and the imposition of redemption fine and penalties on Appellant No. 1. However, the fines and penalties were reduced due to excessive amounts. The redemption fine was reduced to ?15 Lakhs, and the penalty on Appellant No. 1 was reduced to ?5 Lakhs.

Arguments by the Appellant and the Revenue:
The Appellant's CA argued for a lesser penalty, citing examination discrepancies and legal precedents. The Revenue supported the adjudicating authority's decision, emphasizing the misdeclaration of goods and the appellants' responsibility for the discrepancies.

Legal precedents and their applicability:
The Tribunal differentiated the present case from a previous case involving different types of scrap, where confiscation was not upheld. The Tribunal also considered the Gujarat High Court's ruling that separate penalties cannot be imposed on partners if the firm has already been penalized.

Decision on the appeal and modifications to fines and penalties:
The Tribunal upheld the confiscation but reduced the redemption fine and penalties imposed on Appellant No. 1. The penalty on Appellant No. 2 was set aside based on the Gujarat High Court's decision. The appeals were disposed of accordingly, with modifications to the fines and penalties.

This detailed analysis covers the issues, arguments, examination process, legal precedents, and the final decision of the Appellate Tribunal CESTAT AHMEDABAD regarding the misdeclaration of imported goods and the subsequent confiscation, fines, and penalties imposed.

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