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TMI Blog2016 (10) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 112(a) of the Customs Act 1962. 2. Briefly the facts of the case are that the appellant filed a bill of entry No. 004350 dated 19.02.1993 for home consumption through their clearing agents M/s Pavan Enterprises, CHA for clearance of three cases of earth moving equipment. The goods were received against the Master Airway Bill No. 22029247030 dated 02.02.93 and 29.01.93. Along with the Bill of Entry, the appellant filed invoice dated 2.9.93 from M/s Healdean International USA and as per the invoice dated 02.09.93, FOB value of the consignment was 32702.42 US$. In the said bill of entry, the goods were declared as of Japanese Origin. However no country of origin certificate was produced. On inspection of the impugned goods on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct value for the purpose of Section 14 of the Customs Act 1962. 3. M/s Bharat Earth Movers Ltd (BEML for short) Bangalore were manufacturing the Komatsu Earth Moving Equipment in collaboration with KOMATSU, Japan. M/s BEML were also importing from time to time spares from the manufacturers. On comparison of copies of some of the contemporaneous invoices relating to December 1992 with price list it is noticed that M/s BEML were getting at a price 25% less than the price list price. The discount is only 25% from the collaborator. Therefore there was no reason for M/s Intersales, Calcutta to get a reduction of 51.5% on the price list price. As such the value of impugned goods imported in the present case has to be determined under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of assessment and also for confiscation and penalty. The appellant filed a reply, controverted the allegation in the show-cause notices and the Collector of Customs vide his order dated 4.10.93 fixed the assessable value in respect of bills of entry under Rule 5 of the Customs Valuation (determination of Price of Imported Goods Rules 1988) as (a) bill of entry No. 4353-Rs 17,50,211/- CIF (b) Bill of Entry No. 4354 Rs 10,75,700/- CIF. The collector also ordered for confiscation of the goods and allowed redemption on payment of Rs. 1,00,000/- and imposed a penalty of Rs. 50,000/- on the appellant under Section 112(a)(ii) of the Customs Act 1962. Aggrieved by the said order appellant filed appeal before CESTAT and the Tribunal vide its o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot from Japan. Learned Commissioner also failed to take cognizance of the original letter dated 5.9.2002 from M/s Roland Machinery Co., the authorized distributor of Komatsu USA filed on 14.09.2003 which revealed that the goods were supplied from USA. He further submitted that the learned Commissioner erred in adopting the price to BEML as they were also engaged in manufacturing Komatsu parts and their agreement is different from the appellant s transaction. He further submitted that the Commissioner has not considered the various case laws relied upon by the appellant. On the other hand learned A.R. strongly defended the order passed by the Commissioner on the ground that first of all the country of origin certificate was not submitted and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction of the Hon ble High Court which is a constitutional court whereas the Tribunal does not have the power to grant compensation in such cases. As far as misdeclaration on the part of the appellant is concerned, that has been proved by evidence on record and to that extent we do not find any infirmity in the impugned order which we uphold. As far as imposition of penalty of Rs. 2,00,000/-on the appellant is concerned, in our opinion, this is on the higher side because in the first order passed by the Commissioner on 4.10.93, penalty of Rs. 50,000/- was imposed and in the denovo proceedings, learned Commissioner has increased the penalty amount to Rs. 2,00,000/- without any justification. Therefore in our considered opinion, the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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