2014 (4) TMI 17 - AT - Customs

Waiver of pre deposit - Mis-declaration of goods - Mis-declaration in value of goods - Held that - From the records, it is evident that the Revenue has accepted the FOB prices declared by the appellant and also sanctioned the DEPB credit on the basis of such declaration. Therefore, the mis-declaration of PMV can only be considered a as an error without any intent to contravene the law. In these circumstances, the appellant should have been only warned rather than imposed with penalty - appellant has made out a case for waiver of pre-deposit of the penalty imposed. Accordingly, we grant unconditional waiver from pre-deposit of the penalty adjudged against the appellant and stay recovery thereof during the pendency of the appeal - Stay granted.

Summary

Issues:
Appeal against penalty for mis-declaration of present market value of exported goods under Customs Act, 1962.

Analysis:
The judgment by the Appellate Tribunal CESTAT MUMBAI involved an appeal and stay petition against an order-in-appeal passed by the Commissioner of Customs (Appeals), Mumbai. The appellant, a pharmaceutical company, was penalized Rs.1.4 lakhs for mis-declaring the present market value (PMV) of goods exported under the DEPB scheme. The appellant argued that they included marketing expenses in the PMV declaration, believing it was permissible. The Revenue contended that mis-declaration under Section 117 of the Customs Act attracts penalties, citing a significant difference between declared FOB prices and PMV. The Tribunal noted that the Revenue accepted FOB prices and granted DEPB credit based on the declaration, indicating an inadvertent error rather than intentional misrepresentation.

The Tribunal observed that the mis-declaration of PMV was due to an error without any intent to violate the law. Considering the circumstances, the Tribunal opined that a warning would have sufficed instead of imposing a penalty. Consequently, the Tribunal granted an unconditional waiver from pre-deposit of the penalty imposed, staying the recovery during the appeal process. This decision was based on the understanding that the appellant had not deliberately misrepresented the PMV, as evidenced by the Revenue's acceptance of the FOB prices and grant of DEPB credit. The Tribunal emphasized that the penalty should be proportionate to the offense and deemed the penalty excessive in this case, warranting a waiver.

In conclusion, the judgment highlighted the importance of considering intent and context in cases of mis-declaration under the Customs Act. The Tribunal's decision to grant a waiver from the penalty was based on the lack of deliberate wrongdoing by the appellant, as evidenced by the Revenue's actions regarding the FOB prices and DEPB credit. The judgment underscored the need for a balanced approach in imposing penalties, taking into account the circumstances and inadvertent nature of errors in declarations.