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TMI Blog2023 (6) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal by way of an application under Section 129-B of the Act, that the question in regard to availability of extended period for SCN in terms of Proviso to Section 28(1) of the Act had not been specifically dealt with in the order dated 06.11.2018. However, it was observed in the impugned order dated 17.07.2019 that during the course of hearing, the Tribunal was not persuaded to accept the contentions of the appellant. The Tribunal also stated that the relevant aspect had been sufficiently amplified in the principal order dated 06.11.2018. After taking note of the observations therein and the reasons that prevailed with the Tribunal, it is difficult to find if the Tribunal adverted to the question as to whether the necessary elements of the said Proviso to Section 28(1) of the Act were existing or not. Maybe, such a question was not raised by the appellant in the memo of appeal presented before the Tribunal in specific terms but, indisputably, this question remains a jurisdictional question because without existence of the elements specified in the said Proviso to Section 28(1), the show cause notice in question, as issued on 26.09.2006 in relation to the imports m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for rectification. 3. Shorn of unnecessary details and briefly put, the relevant background aspects of the matter are that M/s David Brown Hydraulic Ltd., U.K. Hereinafter referred to as the manufacturer. was in the business of manufacturing hydraulic pumps. The appellant had initially approached them to secure authorized distributorship but, the request was declined because M/s S H Universal, London Hereinafter referred to as the supplier. had already entered into contract for sole distributorship for India and South East Asia. Subsequently, the appellant entered into a sub-dealership arrangement through the supplier. 3.1. The matter in issue pertains to the period 2001- 2003, when the appellant cleared shipment of hydraulic pumps manufactured by the said manufacturer and imported from the supplier. 3.2. A Show Cause Notice SCN , for short dated 26.09.2006 was issued to the appellant under Section 124 of the Act of 1962 on the allegation that the appellant had under-invoiced the bills of hydraulic pumps imported from the supplier during the years 2001 to 2003. The dispute arose owing to the fact that same goods were imported by the sister concern of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted the said pumps by under-invoicing them in collusion with M/s. S H Universal and thus attempted to evade customs duty, the said goods are liable for confiscation under Section 111(m) of the Customs Act, 1962. However, I find that the goods have already been cleared and are no longer available for confiscation. Therefore, the importer is liable to pay a redemption fine in lieu of confiscation under Section 125 of the Customs Act, 1962. It was observed by the Tribunal in case of M/s. Venus Enterprises Vs. Commissioner of Customs, Chennai [2006 (199) ELT 661 (Tri - Chennai)] that fine is imposable even if the goods are not available for confiscation. In the above said judgment, it was observed by the Tribunal in Para 5 that ........ we cannot accept the contention of the appellants that no fine can be imposed in respect of goods which are already cleared. Once the goods are held liable for confiscation, fine can be imposed even if the goods are not available . 28. In the instant case, the action of M/s. Shashi Dhawal Hydraulics Pvt. Ltd. have rendered the subject goods liable for confiscation u/s. 111(m) of the Customs Act, 1962 and hence penalty is imposable on them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut set aside the redemption fine and penalty. The relevant parts of impugned order dated 06.11.2018 could be usefully reproduced as under: - 7. There is no evidence on record that the value declared by the importer is not the price actually paid for the goods. Had the circumstances which prevailed prior to 1998, depicted in the decision of the Hon'ble Supreme Court in re Eicher Tractors Ltd and in accord thereof, be found to have justified the invoking of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 for determination of the assessable value, it would well have been within the scheme of law to confiscate the goods by resort to section 111 (m) of Customs Act, 1962. The fresh determination would have been a consequence of non-compliance with section 14 of Customs Act, 1962 and rule 4 (2) of the said rules arising from deliberate misrepresentation of the transaction value. 8. However, the scheme after incorporation of rule 10A in Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 presents an entirely different scenario. In this scheme, notwithstanding the declared value and the absence of evidence of a different transacti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the elements for invoking the extended period were entirely different and the submissions made during the course of hearing of the main matter did not persuade them that the ingredients were not lacking. The Tribunal also observed that this aspect was sufficiently amplified in its principal order. Hence, the Tribunal rejected the application while observing as under: - 5. Redemption fine was set aside by placing reliance upon the decision in Commissioner of Customs (Import), Mumbai v. Finesse Creation Inc. [2009 (248) ELT 122 (Bom)]. The mis-declaration, referred to in the eighth paragraph of the said order, pertains to the entries made at the time of import and, therefore, held that confiscation was not warranted. The elements prescribed for invoking the extended period are entirely different and the submissions made on behalf of the appellant during the course of the hearing did not persuade us that ingredients were not lacking. This has been amplified sufficiently in our order. Accordingly, while sustaining the invoking of the extended period for the purpose of confirmation of the duty liability, the penal detriments were set aside and we do not find any error in having d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r erroneously refunded, or when any interest payable has not been paid, part paid or erroneously refunded, the proper officer may, - (a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, within one year; (b) in any other case, within six months, from the relevant date, serve notice on the person chargeable with the duty or interest which has not been levied or charged or which has been so shortlevied or part paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: Provided that where any duty has not been levied or has been short-levied or the interest has not been charged or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter, the provisions of this sub-section shall have effect as if for the words one year and six months , the words five years were substituted: 9.1. Obviously, under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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