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TMI Blog2008 (9) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... 50,673/- for obtaining the said certificate. The Adjudicating Authority adopted depreciated value as per Chartered Engineer's certificate on the ground that the same was comparatively more than the value determined by M/s. S. G. S. India Ltd. and determined by the Chartered Engineer M/s. Klaus Walter Bohringer Stuttgart. Out of the 21 second-hand machines, it was found out that two machines were not covered by EPCG licence. With effect from 1-4-1999, these machines could be imported only under specific licence. Since the appellants failed to produce the licence, the Adjudicating Authority held that the goods are liable for confiscation. He imposed redemption fine of Rs. 2,00,000/-. The appellant appealed to the Commissioner (A). The appellant prayed for accepting the declared value and not to adopt the method of depreciation by taking the manufacturer's price. But, the Appellate Authority in his order dated 2-6-2000 upheld the valuation and the confiscation of the goods in question. However, he reduced the redemption fine to Rs. 1,00,000/-. Being aggrieved, the appellant appealed to CEGAT. The CEGAT in its Final Order No. 843/2002 dated 24-7-2002 remanded the matter to the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) It is not correct to say that the appellant had not taken any steps to obtain licence from DGFT in terms of Policy circular dated 29-7-1999. In fact, the appellant had already taken steps in terms of the said Circular and the DGFT issued Special Licence for import of goods in negative list vide Licence dated 11-2-2000. (iv) Since the appellants had received the licence for the import of the said goods from the DGFT, the question of confiscation of subject goods did not arise and therefore, the imposition of redemption fine is equally illegal and untenable in law. (v) The Commissioner (A) in fact enhanced the redemption fine to Rs. 1,50,000/- as against Rs. 1,00,000/- imposed in the previous Order-in-Appeal. The remand order of the Tribunal did not enable the Appellate Authority to enhance the redemption fine already confirmed under the Order-in-Appeal. As per the remand, it is only for consideration of two limited aspects and consequent reduction of redemption fine and non-imposition of redemption fine. It is a settled law that under remand proceedings the authority cannot enhance the redemption fine so as to make the assessee worse off than it was before filing the appeal befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranging from 11-31 years and therefore, the export price quoted by the Chartered Engineer was the actual one and cannot be compared to the deducted value of the customs which restricts the allowance of depreciation for 7 years only. (x) The year of manufacture of machinery was very much available in the Chartered Engineer's certificate issued in Germany. But, the department directed the appellants to produce a certificate from M/s. SGS. Having obtained the certificate, the department fixed the value going by the price in the year of manufacture and allowing depreciation as per norms laid down by the Board. It is submitted that there was difference between the declared value and the value arrived at by the customs by depreciation method because except for three machines, the age of the remaining 18 machines varied from 11-31 years and whereas the department allowed depreciation only for a period of 7 years. The wear and tear in the machinery is undeniable feature even after expiry of 7 years from the date of the order. If this factor is taken into consideration, then there is no reason to discard the price as declared by the Chartered Engineer and M/s. SGS, being the price at which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epted or rejected in part. This opinion has also been upheld by the Supreme Court as reported in 2003 (158) E.L.T. A75 (S.C.). (xvi) It was also brought to our notice that the Hon'ble Supreme Court in the party's own case had held that the transaction value has to be accepted by following the case of Eicher Tractors Ltd., Haryana v. CC, Mumbai - 2000 (122) E.L.T. 321 (S.C.) = 2001 (1) SCC 315. 6. The learned departmental representative stated that the Commissioner has given a very reasoned order and requested the Bench to uphold the impugned order. The learned departmental representative relied on the following judgment to show that the method adopted by the revenue for valuation is correct. (a) Gajra Bevel Gears v. CC, Bombay - 2000 (115) E.L.T. 612 (S.C.) (b) Gajra Bevel Gears Ltd. v. CC, Bombay -1995 (79) E.L.T. 82 (Tri.) (c) Atlas Casting & Metal Impregration v. CC, Hyderabad - 2005 (186) E.L.T. 575 (Tri.-Bang.). 6.1 The learned departmental representative relying on the decision of Supreme Court in the case of Gajra Bevel (supra) stated that valuation of second hand machinery on the basis of Chartered Engineer's certificate and scaling down the price of the machinery by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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