1987 (2) TMI 308 - AT - Central Excise

Issues Involved:

1. Whether the notice to show cause issued under Section 131(3) of the Customs Act, 1962, is barred by the limitation prescribed in subsection (5) thereof.
2. Whether the assessable value of the imported goods can be determined under Section 14(1)(a) of the Act, and if not, which provision is applicable.
3. Whether there has been suppression of facts or misdeclaration of value entailing confiscation of the imported goods under Section 111(d) & (m) and levy of penalties under Sections 112 and 117 of the Act, and if so, what should be the penalties.

Issue-wise Detailed Analysis:

1. Limitation of Notice to Show Cause:
- The notice for revision was issued on 9-3-1981, ostensibly under Section 131(3) of the Act. The Respondent argued that it was barred by limitation under subsection (5) of the Act, relying on a precedent (1975 (2) ILR Kerala 56 - Coromandal Fisheries v. Collector of Customs).
- The cited decision was reversed on appeal (1979 E.L.T. 81), establishing that subsection (5) of Section 131 deals with non-levy and short levy and does not cover erroneous refunds, which fall under Section 28.
- Subsection (3) allows the Central Government to modify or annul any order under Section 128 without a time limit, while subsection (5) requires a notice to show cause within the time limit specified in Section 28 for cases of non-levy or short levy.
- The Tribunal emphasized that the formation of an opinion is a condition precedent for action under either subsection (5) or the third proviso to Section 36(2) of the Central Excises Act, which is in pari materia with Sections 131 and 28 of the Customs Act.
- The Tribunal concluded that the jurisdiction invoked under subsection (3) should not be confused with that under subsection (5). The notice did not indicate that the Government believed any duty had been short levied or not levied, thus falling under subsection (3) and not subsection (5).

2. Determination of Assessable Value:
- The goods were machinery manufactured against specific orders, not ordinarily sold or offered for sale at the time and place of importation, as per Section 14(1)(d) of the Act.
- The Board's assumption that the goods were available for sale in international trade was incorrect. The assessable value could not be determined under Section 14(1)(a).
- Given that the goods were made to specification, the assessable value should be determined under Rule 8 of the Customs Valuation Rules, which allows for best judgment assessment.
- The commission payable to M/s. General Tyre was a relevant factor in determining the assessable value, and its nondisclosure constituted suppression of facts.

3. Suppression of Facts and Misdeclaration:
- The Collector's order included the procurement charges in the assessable value and imposed penalties for suppression of facts and misdeclaration.
- The Board's decision in favor of the Respondent was based on the assumption that the goods could have been procured without the procurement agency's assistance, which was incorrect.
- The Tribunal found the Board's order incorrect and reinstated the Collector's order with modifications to the penalties.
- The Collector had imposed two penalties: Rs. 1,000/- under Section 46(4) and Rs. 50,000/- under Section 112. The Tribunal noted that misdeclaration under Section 46(3) read with Section 111(m) is already penalized under Section 112, making the separate penalties unsustainable.
- The Tribunal reduced the penalties to a total of Rs. 25,000/-, considering the gravity of the offense and the procedural aspects.

Conclusion:

The Tribunal held that the notice under Section 131(3) was not barred by limitation and that the assessable value should be determined under Rule 8 of the Customs Valuation Rules. The suppression of facts warranted penalties, but the separate penalties imposed by the Collector were modified to a single penalty of Rs. 25,000/-. The Board's order was set aside, and the Collector's order was restored with the specified modifications.

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