2010 (3) TMI 430 - AT - Customs

Confiscation- show cause notice was issued which culminated into adjudication order whereby the demand for customs duty on the shortage of gold noticed was confirmed; confiscation of seized diamonds was ordered and an amount of Rs. 10 Lakhs deposited was adjusted towards redemption fine and penalty of Rs. 10 Lakhs was imposed on DJ and penalty of Rs. 5 lakhs was imposed on Shri P.K. Jain, Managing Director. Held that- EXIM Policy violated and goods liable to confiscation. Quoting of section 111(d) of custom act, wrongly not fatal and impugned goods rightly confiscated.

Summary

Issues Involved:
1. Mis-declaration of value of export consignments of diamonds.
2. Confiscation of diamonds.
3. Shortage of gold and duty demand.
4. Penalty imposition on the appellant company and its Managing Director.

Detailed Analysis:

1. Mis-declaration of Value of Export Consignments of Diamonds:
The appellant company argued that the Commissioner's finding of mis-declaration was based on an incorrect assumption that value addition must involve specific operations on the imported diamonds. They cited Para 8.13 and Para 9.21 of the EXIM Policy, which allow for re-export of diamonds with or without repacking/labeling/minor processing, asserting that value addition could be achieved through repacking alone. They also detailed the sorting and repacking activities performed under the supervision of their officers and with departmental permission, which were necessary to meet U.S. Customs requirements.

2. Confiscation of Diamonds:
The Tribunal found that the transaction involving the three companies (owned by the same group) was artificial and aimed at boosting export turnover without real value addition. The Tribunal rejected the argument that Section 111(d) of the Customs Act was misapplied, stating that the goods were liable for confiscation under Section 111(o) due to the artificial nature of the transaction. The Tribunal upheld the Commissioner's decision to confiscate the diamonds based on mis-declaration and overvaluation to meet export turnover requirements.

3. Shortage of Gold and Duty Demand:
The Tribunal examined the shortage of 2732.73 grams of gold found during the stock verification. The Managing Director admitted that the shortage could be due to excess processing loss, manufacture of different types of jewelry, or pilferage. The Tribunal noted that the appellant did not follow the proper procedure of reporting process loss periodically to the Assistant Commissioner for regularization. Given the Managing Director's admission and voluntary payment of duty, the Tribunal upheld the duty demand and found no justification to remand the matter for further investigation.

4. Penalty Imposition:
The Tribunal upheld the penalties imposed on the appellant company but noted that the penalty on the Managing Director had already been set aside by a previous Tribunal order and was not challenged by the department before the High Court. The Tribunal found the penalties reasonable and upheld the Commissioner's order regarding the confiscation of diamonds and the duty demand on the gold shortage.

Conclusion:
The Tribunal concluded that the appellant company's transactions were artificial and aimed at boosting export turnover without real value addition. The confiscation of diamonds and the duty demand on the gold shortage were upheld, along with the penalties imposed on the company. The appeal by the Managing Director was allowed, and the appeal by the company was rejected.