PACIFIC INDIA TRADE CONCERN Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) This is an appeal under Section 130 of the Customs Act. The assessee challenges a final order of the Customs Excise and Service Tax Appellate Tribunal (CESTAT), whereby its appeal was dismissed. It urges that a substantial question of law - in respect of the valuation of imported hair - oil arises for consideration. The appellant had imported various cosmetics including hair oil, hair colour, shaving gel, shaving cream etc. in retail packs for sale to the end users, i.e., consumers. The goods were cleared under bills of entry dated 2.2.2007. In terms of the provisions of the Customs Tariff Act and Rules, the maximum retail price (MRP) at which the goods imported were proposed to be sold had been declared for the purpose of additional customs duty. Paragraph 5 of the General Notes of the Foreign Trade Policy and the provisions of the Standards of Weights and Measures Act, 1976 required that the price at which the goods were to be sold in India and at which the consumers ultimately offered the same had to be declared. Though in the present case goods were cleared on payment of duty, the customs authorities discovered that the MRP stickers were not fixed on the goods. Alleging that the goods were liable for confiscation, they were seized. A show cause notice was issued and the Additional Commissioner by the Order in Original dated 23.3.2012 directed confiscation of goods valued at Rs. 2,66,273/-. They had been released on furnishing a bond and bank guarantee. The appellant was required to pay a redemption fee of Rs. 1 lakh besides a penalty of Rs. 50,000/- under Section 12A of the Customs Act. The Commissioner of Appeals upheld the confiscation of goods but reduced the fine to Rs. 40,000/- and penalty to Rs. 30,000/- on a finding that since contravention of the Foreign Trade Policy had been discerned, Section 111 (d) of the Customs Act was attracted.

(2.) The assessee approached the CESTAT, which by its impugned order rejected the contentions in the following terms:

(3.) Mr. Santhanam, learned counsel for the assessee, highlighted that the Order-in-Original was based upon an ex parte determination which mechanically reproduced the contents of the show cause notice. It was submitted that the customs authorities did not provide the records and documents or correlate the allegations with the respective materials to justify the conclusions resulting in penalty and confiscation impugned in this case. Counsel emphasized that the Inspector who prepared the seizure memo or panchnama, did so without following due procedure and in the absence of any representative of the assessee. Most importantly, it was urged that the duty liability was discharged in full and in the circumstances, the search and seizure was illegal. It was also argued that the Customs or Central Excise authorities are not entitled to re-fix the price by applying the other standards.