MARBLE ART Vs. COMMISSIONER OF CUSTOMS, ICD

JUDGEMENT

(1.) This appeal is directed against Order -in -Original No. AKR/CC/TDK/105/2002, dated 4 -10 -2002 passed by the Commissioner of Customs, ICD, Tughlakabad,' New Delhi. Under the impugned order the Commissioner confiscated six consignments of marble blocks imported by the appellant and gave them an option to redeem the goods on payment of a fine of Rs. 1 Lakh. He also imposed "a nominal penalty" of Rs. 25,000/ - on the appellant. The confiscation of the goods was made under Section 111(m) of the Customs Act, 1962 and the penalty is under Section 112(a) of the same Act.

(2.) It is the contention of the appellants that the entire proceedings were contrary to facts of the case and relevant legal provisions. It is submitted that the proceedings were on the basis that there was an excess weight of about 12.6 M.T. when compared with the imported quantity of about 145 Mt. It is the submission of the appellant that transaction in marble blocks takes place on volume basis and not on weight basis and that this position had been explained to the Customs Authorities vide letter dated 20th August, 2002. The appellants also referred to Certificate dated 15th July 2002 of the foreign supplier that "weight which is indicated in documents under LC No. 084/FLC/46/2002 is only an approximate calculation". This Certificate also provides description of the goods on Cubic Meter (CBM) basis, that is at the rate of 520 USD/CBM, 385 USD/CBM, 200 USD/CBM etc. It is the submission of the learned Counsel for the appellants that the findings in the impugned order are the result of applying an irrelevant criterion of weight to the goods. While the criterion for transaction was volume basis. The learned Counsel also points out that since the appellant was an EOU under obligation to re -export the goods, the whole controversy is also of no significance to customs purposes. He has also produced before us order of this Tribunal in the case of Siddarth Polymers v. Commissioner of Customs, Kandla [2000 (122) E.L.T. 692 (T)] in support of the submission that Customs Authorities condone quantity difference in respect of imported part of the marbles. Para 14 of that order reads as under : -

(3.) We have perused the records and considered the submissions made by learned SDR. It is clear from the records of the case that the transaction in question was on the basis of Cubic Meter and not on the basis of weight. The supplier had also clarified that weight has been indicated approximately. The weight difference is only about less than 9%, while it is noticed that in the case of Siddharth Polymers the difference was in the range of 6 -13 per cent and the same was condoned.