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TMI Blog2013 (8) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities – adjudication was modified only on penalty aspect and order of ld. Commissioner (Appeals) was upheld on valuation aspect setting aside his order on fine and penalty in both cases – decided in favour of revenue. - Appeal No.C/689/2008, Appeal No.C/664/2008 and Appeal No.C/688/2008 - - - Dated:- 28-6-2013 - Mr. D.N. Panda and Mr. Manmohan Singh, JJ. For the Appellant: Shri R.K.Verma, Advocate For the Respondent: Shri.Jitin Saghal, Advocate JUDGEMENT PER: D.N.PANDA The importer National Copier is in appeal No. C/689/08 against Order in Appeal dated 14.7.2008 challenging that to be unsustainable which held that the value of Rs.14,09,535/-declared by that appellant in respect of old and used photocopier machines imported by bill of entry No. 0016 dated 24.01.2008 was low compared to the NIDB date for which that should be enhanced to Rs.17,33,555/- and confirmed the adjudication on such aspect. So also confiscation was held to be proper in law as the impugned goods was imported without licence. However, ld. Commissioner (Appeals) reduced the redemption fine to Rs.4,25,000/- as against Rs.8,50,000/- imposed by ld. Adjudicating Authority. Similarly, he red ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Notification No.31 dated 19.10.2005 issued by Central Govt. brought out the photocopy machines to the category of second hand goods by amendment Notification. As a result of which import of the said goods became restricted goods after 19.10.2005. The moment the goods became restricted, import licence was the necessity. 8. In both the cases the value declared by importers was not acceptable to Customs because the NIDB data indicated the value thereof to be higher on the basis of contemporaneous imports. There was no challenge by the assessees as to the value of the contemporaneous import. The Chartered Engineer who was engaged for examination of the goods was of the opinion that the value of the goods Rs.14,09,535/- declared by assessee should be Rs.15,50,488/- in appeal case No. C/689/2008. In so far as appeal case No. C/688 is concerned while Chartered Engineer certified the value to be Rs.10,83,982/- the value declared by importer was Rs.9,30,150/-. As there was a variation between declared value and the value ascertained by Chartered Engineer that warranted verification from NIDB data and Customs did so. While determining the value of the goods imported in both the appeals C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not have been interfered by ld. Commissioner (Appeals), when he appreciated that the goods were confiscable and undervalued by the importer appellants. 13. Tribunal has an occasion to hear similar such matter in the case of Unitech Enterprises Versus Commissioner of Customs, Chennai reported in 2012 (279) E.L.T. 236 (Tri.-Chennai). It was clearly noticed in that case that case that the licensing regulation came into force from 19.10.2005 and upon analysis of various judgements Tribunal in para 17 to 23 recorded its decision as under:- 17.As stated earlier, import restriction is not in terms of the Customs Tariff Schedule, it is in general terms and hence the restriction must be understood in the way the industry and the users understand the same apart from the fact that these multifunction machines are digital photocopiers which require the printing function to complete the process of photocopying. All such machines are used mainly for photocopying work in offices and establishments. Our view in this regard is in accordance with the cited decision of the Hon ble Supreme Court in the case of Akbar Badruddin (supra) which holds, in para 53, as follows :- It is, of course, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hnical Review Committee. In fact, the proceeding thereof is very much in favour of the Department. The representative of the Department of Information Technology has categorically mentioned therein that the basic function of multifunction devices is photocopying. His stand supports the view of the Department and does not advance the case of the appellants in any way. The discussion reflected in the minutes indicates that the representative of DIT has merely suggested for a specific amendment so that the dispute of the kind that has arisen cannot arise in the future. The affidavit of the customs authorities referred to by the learned counsel also does not advance the case of the appellants. It has been merely stated therein that the impugned goods are different from analog photocopier machines which is factual. As indicated above, we are of the view that both analog photocopier and digital photocopiers whether stand alone or in combination with another device come under the import restriction since the restriction in para 2.17 applies to all secondhand photocopiers and it does not differentiate between different photocopiers on the basis of technology, features or single/multiple us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned goods by the adjudicating Commissioner from the declared value of US % 59,870 (C F) to US $ 69,395 (C F), the learned counsel has not offered any arguments except referring to the grounds of appeal. Apart from that, the adjudicating Commissioner himself has recorded that the impugned goods were not accompanied by the Chartered Engineer s certificate from the load port and hence the value has been re-determined by ascertaining the value from a local Chartered Engineer. The appellants have also, vide their letter dated 21-8-2009, have accepted the value determined by the customs authorities as per the assessment of the local Chartered Engineer. As such, we uphold the valuation done by the adjudicating Commissioner. 22. As regards the fine and penalty imposed, we find that against the assessed value of Rs. 34,15,893/-, the adjudicating Commissioner has imposed a redemption fine of Rs. 10,25,000/- and penalty of Rs. 13,70,000/- after recording that the appellants are being repeatedly importing the impugned goods without valid import licences and that this is the fourth instance. The fine imposed is only 30% of the value determined by the customs authorities and the same cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s relied on the earlier order of the Tribunal in the case of Sri Venkatesh Enterprises v. Commissioner of Customs, Chennai - 2005 (192) E.L.T. 818, wherein the quantum of redemption fine imposed in lieu of confiscation of second-hand photocopiers valued at Rs. 17.7 lakhs was restricted to Rs. 2.5 lakhs and the quantum of penalty was restricted to Rs. 85,000/-. The same was followed in the case of the respondents also by the Tribunal. The fixation of the quantum of redemption is an exercise of discretionary jurisdiction of the authorities under the Customs Act. The Court can interfere only in the circumstances in which it was demonstrated before it that the order of the Tribunal is thoroughly arbitrary, whimsical and resulting in miscarriage of justice. As already stated, the Tribunal has followed its own earlier decision wherein the Tribunal has consistently imposed the redemption fine at 15 percent and penalty under Section 112(a) at 5 percent of the value of the goods, which factum has not been disputed by the counsel appearing for the Department. In the above said view of the matter, we find no question of law, much less a substantial question for entertaining these appeals. Hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to get fine and penalty reduced on technical legal pleas. This petition is product of such illegal activities of the petitioners. An act constituting import of marble without licence has given rise to the present litigation which reached up to the Tribunal. The Tribunal was pleased to allow the release of goods subject to imposition of duty, redemption fine and penalty as determined by the adjudicating authority. The Tribunal has specifically observed in the order that it is clear from the facts that the fine imposed earlier did not act as deterrent to stop further illegal imports. 4. It is thus clear that the petitioners who are in the business of marble and have become a habitual importer of goods in spite of the fact that they are very well aware of the law that the imports have to be backed by a valid licence. In spite of this, if the petitioners are repeatedly indulging in importing marbles without licence, or subsequently obtain licence to cover up illegal imports then it would be a duty of writ Court to arrest such tendency prevailing amongst the importers of the goods. The Apex Court in the case of Her Shankar and Others v. Deputy Excise Taxation Commissioner and Others ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs without licences, undervaluing the same and in one case even the quantity was found to be misdeclared. In respect of Appeal No. C/70/2010 and C/71/2010, it has been indicated by the learned SDR that these are the 4th and 6th imports of the same kind by the same importers. As stated earlier, fines and penalties imposed on such importers previously have not deterred the respondents from continuing to make illegal undervalued imports. In fact, the fine and penalty at somewhat higher levels (together ranging from about 30% to about 55%) imposed in these cases are not at all excessive as the respondents have found it still profitable to clear the goods on payment of the fines and penalties levied and have only subsequently filed appeals before the lower appellate authority. Reductions in fine and penalty granted by the said authority has only gone to further increase their profit margin. 18. Under the circumstances, I am of the considered view that the fines and penalties imposed by the original authorities in these cases of repeated offences are not unreasonable or arbitrary or whimsical considering the fact that the authorities under the law have a duty cast upon them to prevent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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