1994 (3) TMI 219 - AT - Customs

Issues:
1. Confiscation of goods under Section 111(d) of the Customs Act, 1962
2. Penalty under Section 112 of the Customs Act, 1962
3. Import of machine older than 7 years
4. Reliability of evidence: Chartered Engineer's certificate vs. physical examination
5. Reduction of redemption fine and penalty

Confiscation of Goods and Penalty:
The appellant, M/s. Essma Woollen Mills, appealed against the order of the Addl. Collector of Customs, which confiscated Finisher valued at Rs. 1,42,915 under Section 111(d) of the Customs Act, 1962. The Addl. Collector also imposed a penalty of Rs. 72,000 under Section 112 due to wilful misdeclaration. The appellant was given the option under Section 125 to pay the fine in lieu of confiscation. The Tribunal upheld the confiscation and penalty but reduced the redemption fine to Rs. 30,000 and the penalty to Rs. 20,000 considering the age of the machine and that the importer was the actual user.

Import of Machine Older than 7 Years:
The case involved the import of a machine more than 7 years old, which was not allowed under Para 30(2) of the Import & Export Policy, 1988-91. The expert appraiser found the machine to be older than 7 years based on physical examination and documents indicating the year of manufacture as 1971. The appellant argued that the incomplete maintenance chart did not pertain to the machine and provided evidence to support the year of manufacture. However, the Tribunal found the physical examination report more reliable, leading to the affirmation of the confiscation and penalty.

Reliability of Evidence: Chartered Engineer's Certificate vs. Physical Examination:
The appellant relied on a Chartered Engineer's certificate and supplier's confirmation regarding the year of manufacture, while the department based its decision on physical examination and documents found in the container. The Tribunal found the physical examination report, supported by the maintenance chart and the discrepancy in the number plate affixed to the machine, more credible than the Chartered Engineer's certificate. This discrepancy led to the conclusion that the machine was indeed more than 7 years old and required a specific license.

Reduction of Redemption Fine and Penalty:
Despite upholding the confiscation and penalty, the Tribunal reduced the redemption fine to Rs. 30,000 and the penalty to Rs. 20,000 due to the age of the machine and the importer being the actual user. The decision was based on the machine's age and the lack of a specific license, leading to the modification of the original order.

Conclusion:
In conclusion, the Tribunal affirmed the confiscation and penalty imposed by the Addl. Collector but modified the redemption fine and penalty amounts. The decision was based on the age of the imported machine, discrepancies in the evidence presented, and the lack of a specific license for the machine older than 7 years.

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