2013 (8) TMI 726 - AT - Customs

Confiscation of Goods u/s 111(d) and 111(m) - Mis-declaration of Goods - Redemption of Goods u/s 125 Penalty u/s 112(a) - Permissibility of Review - The assesses filed Bill of Entry for import of consignments declared as old woolen and synthetic rags/garments, completely fumigated - Revenue was of the view that the Bill of Entry was assessed by enhancing the value of consignment - Whether the review made by the authority concerned was permissible under the law or not - Held that - The argument of the assesse that the appeal filed was time-barred under provisions of Section 129D failed - Fraud and justice cannot dwell together - The delay was not a matter for which the assesse should get protection for his fraudulent action. COLLECTOR OF CENTRAL EXCISE Versus M.M. RUBBER CO. 1991 (9) TMI 71 - SUPREME COURT OF INDIA and COMMISSIONER OF CUSTOMS, KANDLA Versus ESSAR OIL LTD. 2004 (10) TMI 90 - SUPREME COURT OF INDIA - Assessment of Bill of Entry, without giving any reasons, was an appealable order - But the matter could not have been decided in appeal because the order did not give the reasons for the order - The issue of a reasoned order got delayed because the documents were withdrawn for investigation by DRI - It was the result of the fraudulent action of the appellant in giving fraudulent description of goods on the Bill of Entry. Whether an attempt of revoke would pass a test of legal propriety as mentioned in Section 129D of the Customs Act, 1962 Held that - New facts implying fraud were noticed even after order was passed by Commissioner (Appeals) - the new facts should have been taken into account by the Tribunal for condoning the delay in filing appeal - COMMISSIONER OF CUSTOMS Versus CANDID ENTERPRISES 2001 (3) TMI 101 - SUPREME COURT OF INDIA the Argument of the assesse was not maintainable under Section 129D - The fact that the goods were not examined properly before passing the order cannot be considered as a new fact - only the facts that came out of fresh examination are new facts Decided against Assesses.

Summary

Issues:
1. Consideration of a Misc. application for preponing hearing date.
2. Review of an appeal involving two main issues.
3. Assessment and confiscation of goods under the Customs Act, 1962.
4. Challenge to the order of Commissioner (Appeals) on grounds of limitation and legal sustainability.
5. Interpretation of the date of communication under Section 129D(3) of the Customs Act.
6. Examination of goods and legality of the adjudication order.
7. Appeal based on new facts and the maintenance of appeal under Section 129D.

Analysis:
1. The Misc. application requested preponing the hearing date, which became infructuous due to prior listing for final disposal. The appeal was heard by the Kolkata Bench and dismissed, leading to a High Court referral citing two key issues for reconsideration.

2. The case involved the import of goods declared as old woollen and synthetic rags/garments, leading to enhanced assessment, confiscation, and subsequent actions by the Directorate of Revenue Intelligence (DRI). The Commissioner's order, subsequent review, and appeal to the Commissioner (Appeals) were central to the legal dispute.

3. Challenges to the Commissioner (Appeals) order were based on the grounds of limitation and sustainability, with arguments regarding the date of communication under Section 129D(3) of the Customs Act. The delay in issuing a reasoned order was attributed to fraudulent actions by the appellant.

4. The judgment emphasized the importance of examination of goods for proper assessment and highlighted the relevance of new facts emerging post-adjudication. The legality and propriety of the adjudication order were crucial in determining the validity of the appeal.

5. The argument that the appeal was based on new facts and hence not maintainable under Section 129D was refuted, citing relevant legal precedents. The rejection of the appeal was based on a comprehensive analysis of the facts and legal provisions.

6. The judgment concluded by rejecting the appeal based on the presented facts and legal positions, highlighting the date of pronouncement. The detailed analysis considered various legal aspects, including fraud, examination of goods, and the interpretation of relevant provisions of the Customs Act.

This comprehensive judgment addressed multiple legal issues, ranging from procedural matters to substantive considerations under the Customs Act, providing a detailed analysis of the facts and legal arguments presented before the tribunal.