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TMI Blog2007 (4) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... Smt. R. Bhagya Devi and Shri Vasa Seshagiri Rao, SDRs, for the Respondent. [Order per : P.G. Chacko, Member (J)]. Most of these appeals are by importers of machines declared as Computerised Embroidery Pattern-making Machine with Plotter , who are aggrieved by denial of the benefit of Customs Notification No. 21/2002, dated 1-3-2002 (S. No. 251 of the Table annexed to the Notification read with S. No. 7 of List No. 31 appended thereto) as also by confiscation of the goods (with redemption fine) and imposition of penalty. Some of the appeals are by indenting agents who are aggrieved either by imposition of penalty in connection with confiscation of some of the above machines or by demand of duty (along with confiscation and pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een misdeclared with intent to evade payment of CVD and, therefore, the goods were seized under mahazar. However, provisional release of the goods was allowed as requested by the importers on payment of CVD at normal rate and on Extra Duty Deposit. Show-cause notices were issued (a) to confiscate the goods under Section 111(m) of the Customs Act, (b) to impose penalties under Section 112 of the Act on the importers, indenting agents and/or CHAs and (c) to demand differential duty or appropriate the amounts of such duty already paid. In a few cases, penalties were also proposed to be imposed on the importers under Section 114A of the Act. These proposals in the show-cause notices were contested. The adjudicating authorities confiscated the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Joint Commissioner. Some of the appeals before us are against such orders of the Commissioner. In respect of the import made through the Chennai Seaport, the Joint Commissioner of Customs (Group 5A), Customs House, Chennai denied the benefit of the Notification to one M/s. Vora Creations in respect of the machine imported by them and confirmed demand of CVD against them. He also imposed a penalty on them under Section 114A of the Customs Act. A separate penalty under Section 112(a) of the Act was imposed on M/s. Macro Agencies, indenting agent, in India, of the foreign manufacturer/supplier of the machine. The appeal filed by M/s. Macro Agencies against the penalty imposed on them by the Joint Commissioner was dismissed by the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le only in running condition of the machines. When SITRA inspected the machines in running condition, they found them to be with inbuilt plotter. We are of the view that, when the same agency issued contradictory reports on the nature of a given machine, one in favour of the Revenue and the other in favour of the assessee, the latter (assessee) should have brought on record a clarification from the inspecting agency by cross-examining them before the adjudicating authority. This was not done in any of the cases before us. TECSOK (a Government of Karnataka Organisation) also inspected some of the machines apparently while in running condition, and reported that they were not Computerised Embroidery Pattern-making Machines with Plotter . The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in a predetermined manner governed by software. At the end of this operation, a pattern for embroidery was seen to have been plotted on the paper. It was submitted by learned Counsel and Consultants that a demonstration of actual working of the machines would clearly bring out the fact that they had plotter inbuilt therein. On this basis, they claimed that all the embroidery machines in question were with inbuilt plotter and hence the benefit of the Notification was available to them. There was no misdeclaration of the goods and hence there was no question of confiscation of the goods or imposition of penalty. 6. Learned SDR, on the other hand, submitted that some of the importers of identical machines had admitted that the machines i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we have not found any indication of the aforesaid question of fact having been settled beyond the pale of doubt. There is nothing on record to show that any of the adjudicating or appellate authorities chose to inspect any of the machines in running condition. SITRA s reports gathered by the department and those obtained by the importers are contradictory and any expert from that agency who inspected the machines was not called upon to give oral evidence. The appellants have submitted that, when SITRA inspected a machine in running condition, they found the machine to be with inbuilt plotter. The appellants have also claimed that it was without inspection of the machines in running condition that SITRA reported to the Customs authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X
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