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TMI Blog2008 (6) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... imilar, and the dispute being also similar, they were heard together and are disposed of by this common order. 2. The dispute relates to import of old/used photocopiers. The appellant, M/s. Kestrel Coats Pvt. Ltd., a 100% Export Oriented Unit (EOU), were permitted to set up trading unit for carrying trading activities in used photocopiers, reconditioned photocopiers, toners, components/spares under letter of permission (LOP) dated 14-6-2001 of the Development Commissioner. By letter dated 20-6-2001 "re-conditioned photocopiers in CKD/SKD conditions" was added to the list of items. The permission/approval was to remain valid for two years unless extended in the meantime. It is relevant to mention here that the then existing EXIM Policy (19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lued. The Chartered Engineer appraised the FOB value of the goods to Rs. 24,25,011/-, Rs. 49,91,192/-, Rs. 24,28,156/- and Rs. 59,38,900/- respectively. It was also alleged that the trading units were not eligible for duty exemption in the absence of a corresponding notification from 24-6-2002. Further, the provision relating to setting up trading units under the Export Oriented Unit Scheme had been withdrawn/deleted in the new EXIM Policy (2002-2007) in force from 1-4-2002. 5. The appellant accordingly was served with show cause notices against proposed confiscation of goods under Section 111(d) as well as 111(m) of the Customs Act. Clause (d) of Section 111 provides for confiscation of goods imported in contravention of any prohibition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned SDR for the Revenue, we are of the view that the provisions of Section 111(d) of the Customs Act are not attracted in these cases and, therefore, the goods in question were not liable for confiscation under that provision. As stated above, under clause (d) of Section 111, goods imported can be confiscated if they are imported contrary to any prohibition imposed by or under this Act or any other law for the time being in force . The contravention alleged in the instant case was of a prohibition contained in the new EXIM Policy in force from 1-4-2002. The erstwhile EXIM Policy, however, stipulated setting up trading units under EOU Scheme and it is not in dispute that by Letter of Permission dated 14-6-2001, the appellant was permitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant submitted that the appellant had declared the value as per the value mentioned in the invoice issued by the overseas supplier, in good faith, and there was no deliberate misdeclaration so as to attract the mischief of clause (m). He submitted that the appellant accepted the value appraised by the Chartered Engineer, which shows that there was no intention to misdeclare the value. Counsel relied on the order of the Supreme Court in the case of Jost s Engg. Co. Ltd. v. Collector - 1997 (89) E.L.T. A115. 9. It may be clarified here that by the said order, the Supreme Court summarily dismissed the appeal of the Department against the decision of the CEGAT dated 16-9-1991 in the case of Jost s Engg. Co. Ltd. in which it was held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the bill of entry does not tally with the value determined on appraisal, the ingredient of clause (m) would be attracted and the case would fall within its ambit. It is to be kept in mind that the appellant did not challenge the value of the goods as appraised by the Chartered Engineer and accepted by the Proper Officer. Even before us, learned advocate was not in a position to take a different stand. He submitted with respect to old/used items, it is not possible to declare the exact value. We agree that there is possibility of some variation in the assessment of the value and there may be two opinions on the point. In the instant case, however, considering the extent of variation in the value as declared by the appellant and the value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C/l 46/05 Rs. 5,00,000/- Rs. 3,00,000/- C/l 82/05 Rs. 6,00,000/- Rs. 1,00,000/- We are of the view that the amounts are on the higher side and it would just and proper to suitably reduce them. In the facts of the case, we are of the view that approximately 10% of the value would be suitable redemption fine and, similarly, 20% of the redemption fine would be suitable penalty. We, accordingly, while upholding confiscation of goods and their release on payment of redemption fine, reduce the fine to Rs. 1,40,000/- in Appeal No. C/l44/05, Rs. 4,00,000/- in Appeal No. C/145/05, Rs. 1,50,000/- in Appeal No. C/146/05 and Rs. 4,50,000/- in Appeal C/182/05. Similarly, we reduce the penalties to Rs. 30,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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