1992 (1) TMI 251 - AT - Customs

Summary

Issues Involved:
1. Valuation of imported second-hand machines.
2. Confiscation of goods under Section 111(d) and Section 111(m) of the Customs Act, 1962.
3. Imposition of penalty on the appellants.
4. Legality of imposing penalties on both the proprietary concern and the proprietor.

Issue-wise Detailed Analysis:

1. Valuation of Imported Second-hand Machines:
The appellants imported two second-hand machines with declared CIF values supported by Chartered Engineers' certificates. The Customs officers re-examined the machines and issued a show cause notice, alleging undervaluation based on the local agents' higher price estimates. The adjudicating authority upheld the revised valuation, discarding the Chartered Engineers' certificates due to discrepancies in the new goods' prices. The appellants argued that the department failed to provide contemporaneous import evidence and did not account for commissions to local agents. The Tribunal found that while the Chartered Engineers' certificates were wrongfully discarded, the depreciation allowed by the adjudicating authority (70% for the offset printing machine and 65% for the paper folding machine) was reasonable based on the machines' conditions and residual life. The Tribunal also noted that actual freight and insurance charges from the UK should be considered rather than notional charges from Germany.

2. Confiscation of Goods under Section 111(d) and Section 111(m) of the Customs Act, 1962:
The adjudicating authority confiscated the machines under Section 111(m) for undervaluation and under Section 111(d) for importing an older model than permitted under the ITC Policy. The appellants contended that their bona fides were evident from their negotiations and the Chartered Engineers' certificates. The Tribunal agreed with the appellants, noting that the appellants acted bona fide in declaring the value and year of manufacture, and thus, there was no justification for confiscation.

3. Imposition of Penalty on the Appellants:
The adjudicating authority imposed penalties on both the appellants. The appellants argued that the burden of correct valuation lies with the department, which was not adequately discharged. They also submitted that penalties should not be imposed on both the proprietary concern and the proprietor. The Tribunal found that the appellants acted in good faith, and there was no justification for imposing penalties. Consequently, the fines and penalties were set aside.

4. Legality of Imposing Penalties on Both the Proprietary Concern and the Proprietor:
The appellants argued that imposing penalties on both the proprietary concern and the proprietor was illegal, citing a Tribunal decision in V.K. Thampi v. CC & CE, Cochin. The Tribunal noted that since the fines and penalties were set aside, this issue was of academic interest. However, they acknowledged that imposing penalties on both was unnecessary.

Conclusion:
The Tribunal allowed the appeal, setting aside the fines and penalties, and directed that actual freight and insurance charges from the UK be considered for valuation. The appellants were found to have acted bona fide, and the depreciation allowed by the adjudicating authority was deemed reasonable.