COMMISSIONER OF CUSTOMS Vs. KARCE ENTERPRISES (INDIA) PVT.

JUDGEMENT

(1.) AFTER examining the records and hearing both sides, we find that the appeal itself requires to be finally disposed of at this stage. Accordingly, after rejecting the stay application filed by the appellant (department), we proceed to deal with the appeal.

(2.) THE respondents had imported a consignment of electronic goods and filed a Bill of Entry on 02.09.2002 for clearance thereof. The original authority found misdeclaration of quantity and value of the goods and accordingly ordered confiscation thereof, with option for redemption on payment of a fine of Rs. 4 lakhs. The authority also imposed a penalty of Rs. 1 lakh on the importer under Section 112(a) of the Customs Act. In an appeal filed by the assessee, ld. Commissioner (Appeals) found misdeclaration of both description and quantity of the goods but did not interfere in the value declared by the party. The appellate authority also vacated the redemption fine, while sustaining the penalty. In the present appeal of the department, the main challenge is against the acceptance of transaction value by the lower appellate authority. Ld. SDR submits that, after having found that the misdeclaration of description of the goods had a bearing on the value of the goods, it was not open to the Commissioner (Appeals) to accept the transaction value declared by the party. With regard to redemption fine, it is submitted that the fine was vacated for want of margin of profit. Margin of profit being an element to be reckoned in the determination of the value of the goods, ld. SDR submits, the question whether there should be redemption fine in lieu of confiscation and, if so, to what extent also should have been examined by the appellate authority. We have heard ld. Counsel also. It is submitted that there is nothing in the impugned order to indicate that the finding of misdeclaration of description of goods, recorded by the lower appellate authority, could be considered to be leading to an implied finding that there was misdeclaration of value as well. Ld. Counsel has also contested the other submissions of the appellant.

(3.) AFTER careful consideration of the submissions, we find that the finding of misdeclaration of description of goods, recorded in the impugned order, has been accepted by the assessee, who has not chosen to prefer appeal against the impugned order. The lower appellate authority has sustained the penalty on them, which also has been accepted. Revenue is in appeal against the decision of the lower appellate authority with regard to the value of the goods as also to its redeemability on payment of fine. We find that this challenge has force.