VAZ ENTERPRISES Vs. COMMR. OF CUS., AHMEDABAD

JUDGEMENT

(1.) THE facts in brief are that the appellant had filed a Bill of Entry No. 128 dated 30 -4 -04 at ICD Vapi, declaring the imported goods under broad heading Furniture but including inter alia, goods such as washing machines, music systems, refrigerator and cooking range. The CHA M/s. Mathurdas Narandas had filed the Bill of Entry on behalf of the importer and the same was assessed. The assessed duty of Rs. 1,16,876/ - was paid by the importer vide TR 6 challan No. 130, dated 7 -5 -04. However, on demand neither the importer nor the CHA could produce the copy of assessed Bill of Entry. The same was also not available in the office. As the Bill of Entry was not traceable, the same was reconstructed based on certain documents such as Invoice No. 352 dt. 30 -2 -04 and Bill of Lading No. DXBBCO39560, dt. 21 -3 -04. The Bill of Lading described the goods as 168 packages of Used Furniture. But the invoice contained only 13 items. It was also found that the Bill of Entry contained 13 items listed in the invoice. Re -examination of the goods still lying in the port was conducted and comparison of the inventory taken during the examination revealed that several items which were found on re -examination had not been declared in the Bill of Entry and it was also found that several items were old and used but had not been declared in the Bill of Entry. Further, it was also found that old and used items could be imported only under the cover of licence which had also not been produced by the appellant. Since the appellant failed to produce any evidence regarding valuation of items which were found in excess, the department appointed an approved valuer viz. M/s. Anjaria Enviro Tech. (P) Ltd., who inspected the goods and submitted a valuation report. After recording statements of the employee of the CHA, authorized signatory and the appellant and after issue of show cause notice, adjudication and appellate proceedings, the demand for differential duty of Rs. 2,14,756/ - has been confirmed, redemption fine of Rs. 1 lakh has been imposed, and penalty of Rs. 1 lakh has been imposed on the appellant.

(2.) HEARD both sides. Learned advocate for the appellant submitted that in this case, the Bill of Entry had been filed on 30 -4 -04 which was assessed after first check. It has also been submitted by him that value has been enhanced after assessment and the duty was paid by the appellant on 7 -5 -04. However, Superintendent of Customs ICD Vapi wrote a letter dt. 17 -5 -04 to the CHA of the appellant to submit assessed Bill of Entry No. 128/30 -4 -04 and subsequently Bill of Entry was reconstructed when assessed bill of entry was not submitted and reexamination was conducted. After adjudication and appellate proceedings, differential duty has been demanded, fine and penalty have been imposed. He submitted that in view of the fact that the goods have been cleared after first check and value has been enhanced, the proper course of action for the department was to file an appeal against assessment dated 30 -4 -04 and department had no right to issue a show cause notice and commence proceedings under Section 28 of Customs Act, 1962. He relied upon the decision of Honble Supreme Court in the case of Flock India Pvt. Ltd. - 2000 (120) E.L.T. 285 (S.C.) and also the decision of the Tribunal in the case of Lord Shiva Overseas - 2005 (181) E.L.T. 213 (Tri -Mumbai), Hitashi Fine Kraft Indus. Pvt. Ltd. - 2002 (148) E.L.T. 364 (Tri. -Kolkata) in this regard. He also submitted that valuation was don behind their back and there is no logic given for imposition of redemption fine. Further, he also submits that the finding of lower authority that imported goods were not declared in the Bill of Entry, is without any basis and deserves to be dismissed.

(3.) LEARNED SDR, on the other hand, relied upon the decision of the Tribunal in the case of Rajiv Woollen Mills Pvt. Ltd. - 1992 (58) E.L.T. 135 (Tribunal) in support of contention that the goods can be re -assessed to duty before the same are taken out of the custodians premises and also submitted that Honble Supreme Court declined to interfere with the decision of the Tribunal. Further, he also submitted that according to the authorized signatory of the CHA, the office copy of the Bill of Entry was available and it has been admitted that in the office copy of the Bill of Entry dt. 30 -4 -04 also, only 13 items as per the invoice had been incorporated and this clearly shows that the appellant had not filed the details as per packing list but had chosen to give the details only as per the invoice. Further, he also submitted that in case of Rajiv Woollen Mills Pvt. Ltd., the examination report had mentioned that 20% of the goods had been thoroughly checked and description was verified. Report also specifically stated that the goods were properly mutilated woolen rags and were not serviceable garments. In spite of the examination report, the Tribunal had taken a view that reassessment in that case was in order. In this case, the details of the examination report are not available and the original Bill of Entry had been lost. It was submitted that once assessment is made, the Bill of Entry is returned to the appellant to discharge the duty liability and it was for the appellant to come with Bill of Entry and TR -6 challan for proof of payment of duty to get the goods cleared. Therefore, the contention of the appellant that the department was responsible for loss of Bill of Entry, cannot be accepted.