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TMI Blog2004 (5) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be relied. In the present case, as noted, the new price of the various models of colour monitors has not been stated nor has shown the method of the depreciation to arrive at the value. We have not found the Chartered Engineer's Certificate to be a reliable document and as the same has been rejected, the valuation adopted also stands rejected. Thus, the impugned order is set aside and appeal allowed. - Dr. S.L. Peeran, Member (J) and Shri K.C. Mamgain, Member (T) [Order per : S.L. Peeran, Member (J) (Oral)]. - This appeal arises from Order-in-Appeal No. 691/2003-Cus., dated 19-11-2003 passed by the Commissioner of Customs (Appeals), Chennai. 2. The appellants have been permitted to file the appeal in this Bench in terms of Misc. Order No. 148/2004, dated 1-4-2004 in view of the appellant being situated within the jurisdiction of this Bench. The Commissioner (Appeals) upheld the Order-in-Original No. 1000/2003, dated 24-4-2003 (signed on 19-9-2003) by which the import of used Colour Monitors, which was not reconditioned and year of manufacture was not available, was held to have violated Para 2.33 of the EXIM Policy 2002-2007 of Handbook of Procedure Volume-I, which prohi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals) appears to have taken this corrigendum behind the back of the appellants and held the confiscation to be proper for violation of Para 2.17 of the EXIM Policy, and has held the goods to be confiscable and has reduced the redemption fine of Rs. 3,80,000/- to Rs. 1,00,000/- and penalty from Rs. 1,90,000/- to Rs. 25,000/-. At the outset, the learned Counsel attacked this procedure adopted by the Additional Commissioner in obtaining evidence behind their back in respect of the Chartered Engineer's Certificate. It was submitted that after the appeal was heard by the Commissioner, the Additional Commissioner issued a corrigendum on the date on which the appeal was heard and proceeded to invoke Para 2.17 with regard to import of second hand goods. The Commissioner (Appeals) has proceeded to confirm the order-in-original on the basis of the corrigendum. 3. Learned Counsel relied on the Circular No. 502/68/1999-CX, dated 16-12-1999 which has been issued by the Board on aspects pertaining to corrigendum issued subsequent to the adjudication order. The same is re produced below : 'Government of India Ministry of Finance (Department of Revenue) Central Board of Excise Customs Subject : Is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Supreme Court judgment in Lala Shri Bhagwan v. Ram Chand and Another (AIR 1965 S.C. 1767) wherein their Lordship have held that..."on the other hand, authorities or bodies which are given jurisdiction by statutory provisions to deal with the rights of citizens, may be required by the relevant statute to act judicially in dealing with matters entrusted to them. An obligation to act judicially may, in some cases, be inferred from the scheme of the relevant statute and its material provisions. In such a case, it is easy to hold that the authority or body must act in accordance with the principles of natural justice before exercising its jurisdiction and its powers, but it is not necessary that the obligation to follow the principles of natural justice must be expressly imposed on such an authority or body. If it appears that the authority or body has been given power to determine questions affecting the rights of citizens, the very nature of the power would inevitably impose and limitation that the power should be exercised in conformity with the principles of natural justice. Whether or not such an authority or body is a Tribunal, would depend upon the nature of the power conferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of stand from one para of the Policy pertaining to second hand capital goods, which can be, imported freely having less than 10 years of age to another para pertaining to import of second hand goods which is prohibited. The action of the original authority has been rightly assailed. It smacks of mala fides and, therefore, the corrigendum issued is not sustainable. The Department invoked Para 2.33 pertaining to import of second hand capital goods alleging it to be not more than 5 years old while the Policy itself lays down the period of 10 years. As per the Chartered Engineer's Certificate, the age of the goods was less than 10 years and, therefore, its import is valid. The order of confiscation and imposition of penalty is, therefore, set aside. 5. The next question that arises for consideration is as to whether valuation can be enhanced in the matter. In the case of Nina Chaka Pvt. Ltd. v. CC, New Delhi - 2004 (163) E.L.T. 464 (Tri.-Del.), the Bench has held that resort to Rule 8 cannot be taken without exhausting the provisions contained in the earlier rules especially Rules 5 and 6 dealing with valuations based on the value of identical and similar goods. On perusal of the Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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