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TMI Blog2017 (10) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... . Consequently, it was argued that the adjudicating authority should have accorded weightage to the affidavit of the supplier instead of relying upon a pro forma invoice of M/s Imperial Container Pte Ltd to hold that no differential duty was recoverable. The impugned order has concerned itself primarily with the proposal to confiscate the ‘stainless steel drums’ and for imposition of penalty under section 111 and section 112 respectively of Customs Act, 1962. With our finding on duty liability devolving on the packaging material consequent upon ineligibility for exemption, it necessarily follows that compliance with the regime of the EXIM Policy, as prevailing then, must also be gone into. There is no dispute that the drums are made of ‘stainless steel’ and that these were not importable except through designated canalizing agency. Import by any another was permissible only against a valid licence which the importer-appellant, admittedly, was not in possession of. On behalf of the appellant, it is claimed that they had no intention of importing any goods that were not permitted under the EXIM Policy. A plain reading of section 111(d) of Customs Act, 1962 along with the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urced 3722 metric tons of refined bleached deodorized (RBD) palm oil in ten consignments between December 1978 and April 1979 which were shipped in stainless steel drums that were not eligible for exemption provided for in notification no.184/76-Cus dated 2 nd August 1976; a separate proceeding was initiated for the import of these containers without production of a valid licence mandated in the EXIM Policy AM 1979 for consumer goods in Appendix 3. During search, 19961 of these drums were recovered against the 19590 that had been imported and test report of the Chemical Examiner indicated these to be composed of non-magnetic stainless steel that were liable to basic duty at 220% besides additional duty thereon. Relying upon the price of ₹ 650.68 per unit furnished by M/s Imperial Containers Pte Ltd, Singapore, the show cause notice computed the assessable value to be ₹ 260 per unit being the difference between mild steel drums and stainless steel drums for fastening the duty liability. 3. The differential duty was confirmed in the impugned order on the ground that the privilege of exemption allowed to packaging material in notification no.184/76-Cus dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conditions of exemption, such challenge is not relevant. Accordingly, we propose to discard any findings that rely exclusively upon the public notice. 6. It is further contended by Learned Counsel that reliance has been placed on documents that were not before the Hon ble Supreme Court and that statements/averments of various individuals and those trading in RBD palmolein should have been subject to cross-examination. In view of the directions of the Hon ble Supreme Court, we propose to discard any findings that did rely exclusively on such materials. 7. Learned Counsel also claims that the bar of limitation applies as there has been no suppression on their part. That, according to us, requires an examination of facts and to be undertaken when evaluating those. Confiscation proceedings are not subject to bar of limitation which is statutorily prescribed only in section 28 of Customs Act, 1962 and the constraints are the enforceability of confiscation, redemption fine and penalty. The notices for less charge demand are certainly subject to bar of limitation of normal period or extended period which is contingent upon facts that will be scrutinized by us. There is no restra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inless steel drums at premises of reliable persons and that the material did command premium in a scarcity-drain market is sufficient to establish that the stainless steel drums are not packaging material but separate and distinct goods that should be subject to assessment and duty. We must note here that we have not placed any reliance on the public notice or such of its prescriptions as are not envisaged in the notification. 11. With the stainless steel drums being ineligible for exemption, they are to be subject to assessment for appropriate duty. It is the contention of Learned Counsel that the impugned order has not complied with the statutory prescriptions relating to valuation and that no consideration had been contracted with supplier of the goods for the packaging material. Consequently, it was argued that the adjudicating authority should have accorded weightage to the affidavit of the supplier instead of relying upon a pro forma invoice of M/s Imperial Container Pte Ltd to hold that no differential duty was recoverable. Reliance was placed on the decision of the Tribunal in Sanjay Kumar Agarwal v. Commissioner of Customs, Mumbai [2016 (331) ELT 81 (Tri-Mumbai)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was) in October 1979. The jurisdiction of the notice issuing authority to invoke the extended period under section 28 of Customs Act, 1962 is a pre-requisite that must bear scrutiny. Since the less charge notices are required to be disposed off as directed supra, the plea of bar of limitation may also be dealt with along with it. 14. The impugned order has concerned itself primarily with the proposal to confiscate the stainless steel drums and for imposition of penalty under section 111 and section 112 respectively of Customs Act, 1962. With our finding supra on duty liability devolving on the packaging material consequent upon ineligibility for exemption, it necessarily follows that compliance with the regime of the EXIM Policy, as prevailing then, must also be gone into. There is no dispute that the drums are made of stainless steel and that these were not importable except through designated canalizing agency. Import by any another was permissible only against a valid licence which the importer-appellant, admittedly, was not in possession of. On behalf of the appellant, it is claimed that they had no intention of importing any goods that were not permitted under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to them had they succeeded in disposing of the stainless steel drums. However, considering the circumstances narrated above, the ends of justice will be met by restricting the penalty imposed on Shri Vinod Jain and Shri Rakesh Jain to ₹ 50,000 each. 18. Learned Authorized Representative relies upon the decision of the Hon ble Supreme Court in Sachidananda Banerjee, ACC Calcutta v. Sitaram Agarwala [1999 (110) ELT 292 (SC)] to buttress the appeal of Revenue against the dropping of proceedings against the other noticees. It is clear that these noticees had not been furnished with relied upon documents and they had not participated in the adjudication proceedings. Yet the impugned order did not consider it fit to impose penalties under section 112 on them. We also do not find any specific evidence of their role in the import or later except that their premises were used for storing the drums. The relative insignificance of their role then pales further in view of the altered economic priorities of today. In our opinion, there is, therefore, no reason to interfere with the impugned order on the issue of non-imposition of penalty. 19. The thirteen appeals are dispos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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