9911796707
TMI Blog2002 (2) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... rial gases such as Liquid and Gaseous Oxygen, Nitrogen, etc., that the petitioner has its factory at Pondicherry; that the petitioner came across an advertisement in 'Business India' in the year 1989 regarding the sale of a second-hand 75 TPD plant available for sale in California U.S.A. with M/s. Nickolai Joffee Corporation (hereinafter called as NJC); that primarily the NJC was a scarp dealer and had purchased the said plant and machinery as a scrap; that NJC made enquiry in order for sale of the second-hand incomplete plant for a sum of U.S. Dollars 9,39,500/-; that during December, 1991 NJC revised its earlier offer and quoted a price of US Dollars 7,89,000/-; that in January, 1992 NJC informed the petitioner that the price of the plant included U.S. Dollars 1,60,000/- for reforming and converting 3000 HP and 500 HP Motors from 60 Hzs. to 50 Hzs.; that the NJC further revised the offer on 2nd June, 1992 to US Dollars 3,35,000/- FAS plus freight, insurance with the condition that the cost of conversion of two electric motors 3000 HP and 500 HP into 50 Hzs. was to be borne by the petitioner; that however, further negotiations were carried out and the petitioner was able to strike ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollars 3 million and as against this, the petitioner had purchased the goods for US Dollars 4,31,800/-; that in the light of this the Customs Authorities wanted to make assessment adopting the value arrived at by allowing 70% depreciation by taking the value of the machineries at US Dollars 3 Millions; that as there were some problems in determining the value of the Plant at the time of original sale or at the time of its manufacture, clearing agents of the petitioner had suggested that the same Chartered Engineer could be requested to certify the approximate price of the plant in the year 1965 at the time of original purchase by the original owner; that taking into consideration the rate of inflation in USA during the period 1965 to 1993, the price was indicated as US Dollars 1,150,000/- as the scrap dealer was not in a position to obtain the original invoice; that accordingly the foreign supplier furnished a fresh certificate bearing the same date from the Chartered Engineer mentioning clearly that the original purchase price was not known and the approximate value of new plant during 1965 at the time of original purchase would be US Dollars 1,150,000/-; that in the light of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate; that scrutiny of the records revealed that the importers had solicited documents and Chartered Engineer's Certificate to suit the Export and Import Policy and the requirements of the customs and also undervaluation with an intention to evade customs duty; that elaborate enquiries were conducted and subsequently based on the same, a show cause notice was issued to the petitioner on 31-10-1996; that the Commissioner of Customs, Chennai after hearing the petitioner passed an adjudication order confirming the duty based on the enhanced value of the consignment; that he also ordered for the confiscation of the goods under Section 111(m) of the Customs Act, 1962, but allowed to be redeemed on payment of fine of Rs. 10 lakhs; that he also imposed penalty of Rs. 5 lakhs on appellant-company under Section 112 of the Customs Act, 1962. On such averments, praying for dismissal of the writ petition. 6.During arguments, the learned Counsel appearing on behalf of the petitioner-company pointing out Paragraphs 10 to 12 of the order of the Appellate Tribunal while dealing with the Chartered Engineer's Certificate for import of second-hand plant and machinery that it came to be seen that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same would cite from the decided cases such as : (i) 1994 (71) E.L.T. 646 (Mad.) (Collector of Customs, Madras v. Madras Electro Castings P. Ltd.) (ii) 1991 (52) E.L.T. 346 (Mad.) (S. Champalal v. Union of India) (iii) AIR 1973 KERALA 7 (Collector of Customs and Central Excise, Cochin v. Markose Arnaeutakis, S.T. Speedway, Cochin) 8.So far as the first judgment cited above reported in 1994 (71) E.L.T. 646 (Madras) is concerned the first Bench of this Court in its judgment dated 13-10-1993 dealing with the similar situation has ordered that "the Tribunal has got powers to pass appropriate interim orders." 9.In the second judgment cited above reported in 1991 (52) E.L.T. 346, (Madras) a single Judge of this High Court has held that "a specific remedy has been provided under the Act that procedure should be moved by any aggrieved party. He cannot allow statutory remedy to be barred by time and approach this Court under Article 226 of the Constitution of India for a remedy." 10.In the third judgment cited above reported in AIR 1973 Kerala 7 wherein it has been held that "sufficiency or adequacy of materials for customs authorities to reach to a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atters arising out of Customs Act regarding the sufficiency or adequacy of materials for Customs Authority to reach to a conclusion cannot be considered in a writ petition under Article 226 of the Constitution of India since it is just and proper only for those forums designated by law to deal with such materials and questions connected to various facts and circumstances in order to arrive at a valid and binding decision and therefore whether it is in the remand resorted to by the Appellate Tribunal below ordering a trial de novo or in requiring deposit of the amounts required to be made before the adjudicating authority (in the case in hand at 50% of the differential duty demanded), and only when such requirement is complied with, the order passed by the adjudicating authority would become set aside. 14.Since on the part of the petitioner absolutely no valid or tangible reason has been assigned as to how such an order passed by the Appellate Tribunal below is bad in law nor any legality either argued or cited as questioning the authority of the Tribunal to pass such an order while making the remand and therefore, it is a case wherein no irregularity or inconsistency or procedura ..... 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