PAYAL POLYPLAST PVT. LIMITED Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THIS appeal has been field by the appellant with respect to OIA No. 24/2014/Cus/Commr(A)/KDL dated 05.2.2014 passed by Commissioner (Appeals) Kandla. Adjudicating authority under OIO No. KDL.AC/PS/1289/Gr II/2013 -14 dated 09.10.2013 confirmed a demand of Rs. 1,25,000/ - with respect to excess quantity of 15.160 MT of 2 Ethyl Hexanol found in the imported cargo and also imposed redemption fine of Rs. 75,000/ - upon the appellant under Section 112(a) of the Customs Act, 1962. On an appeal as per OIA dated 05.2.2014 first appellate authority set -aside the demand of duty but upheld imposition of penalty for violation of Section 111(m) of the Customs Act, 1962. However, redemption fine was reduced from Rs. 75,000/ - to Rs. 40,000/ - by the first appellate authority.

(2.) SHRI Vinay Kansara (Advocate) appearing on behalf of the appellant argued that as per the shipping Bill and the documents received from the supplier, the quantity of imported goods was shown as 500MT. That accordingly the import documents were filed. That Adjudicating authority in Para 4.3 and 4.4 of the OIO dated 09.10.2013 has clearly held that there could be change in the quantity of imported goods and that it is not the case of the department that appellant has concealed the quantity of 15.160 MTs. That in view of the facts recorded by the Adjudicating authority confiscation of goods is not justified as per Bombay High Court judgment in the case of Oriental Containers Limited vs. Union of India [ : 2003 (157) ELT 503 (Bom.)].

(3.) HEARD both sides and perused the case records. Appellant imported a consignment of 500MT of 2 - Ethyl Hexanol but a quantity of 15.160 MTs was received in excess in the shore tanks. Appellant filed a post B/E and paid the differential duty also. Adjudicating authority in Para 4.3 and 4.4 of the Adjudication order dated 09.10.2013 has recorded that appellant is a regular importer and has also paid duty on 515.160 MTs. It was also recorded that there is no modus involved in the import and that there could be a variation between the weight based on volume calculation and actual delivery of Cargo. Once it is held that weight of the cargo of the nature imported is liable to vary it is not coming out from the records, as to why 1% difference is condonable and 3% is not condonable. Appellant never knew that there could be any quantity in excess of what is available in the import documents and what was ordered.