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TMI Blog2010 (10) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... these two stages, the adjudicating authority was required to send a copy of the adjudication order to the Development Commissioner for calculation of the cumulative NFE and his directions for de-bonding, in case the adjudicating authority arrived at a particular finding about mis-declaration of the value and the description of the goods. The said order was duly confirmed by the High Court of Delhi in the proceedings which were carried to the High Court by the Department against the said order of the Tribunal. He further submitted that the adjudicating authority, totally ignoring the said directions, proceeded to decide about the duty liability of the appellants without calling for necessary finding of the Development Commissioner, in terms of the said remand order of the Tribunal. 2. On the other hand, it is sought to be contended that the impugned order is in consonance with the directions issued in the remand order. Considering the scope of the direction in relation to the first stage of the adjudication that the remand order which included not only the decision relating to the issue of mis-declaration of value but also in relation to the liability of confiscation and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udication be extended by a further period of six months. The Tribunal has remanded the matter for a de novo adjudication and has given three directions therein as mentioned in paragraph 4 of the order itself. We are not interfering with the first and second directions. However, since the learned Counsel for the appellant has required for time, the third direction with regard to the adjudication being completed within a period of six months from today. It is made clear that this Court has not expressed any opinion on the merits of the matter." It was also observed that :- "No review/recall of the order dated 25-11-08 is called for. In so far the fear of the appellant/applicant with regard to the second direction given in the order passed by the Tribunal on 26-8-08 is concerned, we see no reason as to why such a fear should at all arise. The direction is clear inasmuch as it states that the issue of cancellation of the private bonded warehouse licence of the EOU, quantification and confirmation of the duty demand in respect of the seized goods and imposition of equal penalty under Section 144A of the Act should be adjudged (adjudicated) by the Commissioner in the light of the Devel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in view the peculiar modus-operandi of mis-declaring the value of imported goods by the noticee. I hold that the benefits of Notification No. 52/2003-Customs dated 31-3-2003 shall not by allowed to the noticee and all the customs duty amounting to ₹ 4,92,09,002/- which was leviable at the time of import of the scrap weighing 1338.507 MT, seized on 20-1-06, 50.4 MT covered by B/E No. 481200 & 481211 both dated 19-1-06 seized on 3-2-06 at factory premises and 104.08 MT covered by B/E No. 480394 & 480396 both dated 16-1-06 seized at ICD, TKD on 21-1-06 & 21-4-06 is recoverable from the noticee under Section 28 of Customs Act, 1962. 36. This is a clear case of pre-planned and deliberate concealment of Brass Scrap in the guise of cheap metal scrap as Mixed Brass Scrap or Mixed Metal Scrap. On account of mis-declaration of the value of goods, the duty of ₹ 4,92,09,002/- were being evaded. 37. In view of the above discussion & findings, it would be appropriate for the Development Commissioner to include the mis-declaration of CIF value of the seized goods while calculating the CIF value of all the imports made by the noticee company, in order to determine whether the not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of value and the description of the goods, but admittedly, no report of the Development Commissioner was sought for before quantification of duty and penalty and confirmation thereof. 9. It is also sought to be contended on behalf of the respondent that liability of confiscation is considered under Section 111 whereas the penalty under Section 112(a). Section 111(d) and (m) under which the liability in relation to confiscation of the seized goods was required to be considered, read thus - "The following goods brought from a place outside India shall be liable to confiscation : - …….. …….. …….. (d) any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force; …… …… …… (m) any goods which do not correspond in respect of value or in any other particular with the entry made under this Act or in the case of baggage with the declaration made under section 77 in respect thereof, or in the case of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to seized goods relating to liability of confiscation and the liability of penalty. If we peruse clause (2) of the remand order, it specifically refers to quantification and confirmation of duty demand and also penalty under Section 114A of the Customs Act. 12. Section 114A refers to penalty for short-levy or non-levy of duty in certain cases and the determination thereof, has to be under sub-section (2) of Section 28 of the Customs Act. Section 26(2) provides that the proper officer, after considering the representation, if any, made by the person on whom notice is served under sub-section (1), shall determine the amount of duty or interest due from such person. 13. Apparently, therefore, the remand order clearly distinguishes between the issue regarding the liability to suffer duty or liability to suffer penalty and the quantification and confirmation of duty and penalty. While the adjudication regarding the issues covered by the first direction were required to be decided prior to sending copy of the order to the Development Commissioner seeking his report in relation to the matter specifically stated in clause (2) and the issue regarding quantification of duty and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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