LAWS(CE)-2007-4-201

VIJAY EMBROIDERIES Vs. COMMISSIONER OF CUSTOMS,

Decided On April 30, 2007
Vijay Embroideries Appellant
V/S
Commissioner Of Customs, Respondents

JUDGEMENT

(1.) MOST of these appeals are by importers of machines declared as "Computerised Embroidery Pattern -making Machine with Plotter", who are aggrieved by denial of the benefit of Customs Notification No. 21/2002 dated 01.03.2002 (S. No. 251 of the Table annexed to the Notification read with S. No. 7 of List No. 31 appended thereto) as also by confiscation of the goods (with redemption fine) and imposition of penalty. Some of the appeals are by indenting agents who are aggrieved either by imposition of penalty in connection with confiscation of some of the above machines or by demand of duty (along with confiscation and penalty) in relation to import of similar machines for which they were cited as importers in the relevant bills of entry. The Managing Partner of one of the indenting agencies is also in appeal against penalties imposed on him in relation to some of the imports. A few appeals are by a Customs House Agent who handled some of the imports and is aggrieved by imposition of penalty. All the imports, barring one, were made through Tuticorin Port. The remaining import vide Appeal No. C/29/2007 was made through Chennai Seaport. The imported machines were described in the relevant bills of entry and other import documents as "Computerised Embroidery Pattern - making Machine with Plotter" and exemption from payment of additional duty of Customs (Countervailing duty) was claimed in terms of S. No. 251 of the Table annexed to Customs Notification No. 21/2002 dated 01.03.2002. "Computerised Embroidery Pattern -making machine with Plotter" figured as Item No. 7 in List No. 31 appended to S. No. 251 ibid. This benefit was not available to Computerised Embroidery Machine "without Plotter". The Customs authorities gathered inspection reports from South India Textile Research Association (SITRA) and/or Technical Consultancy Services Organisation of Karnataka (TECSOK), which agencies reported that the embroidery machines were without plotter. In some cases, the Customs authorities themselves examined the machines and found no plotter in the machines. It appeared to the authorities that the goods had been misdeclared with intent to evade payment of CVD and, therefore, the goods were seized under mahazar. However, provisional release of the goods was allowed as requested by the importers on payment of CVD at normal rate and on Extra Duty Deposit. Show -cause notices were issued (a) to confiscate the goods under Section 111(m) of the Customs Act, (b) to impose penalties under Section 112 of the Act on the importers, indenting agents and/or CHAs and (c) to demand differential duty or appropriate the amounts of such duty already paid. In a few cases, penalties were also proposed to be imposed on the importers under Section 114A of the Act. These proposals in the show -cause notices were contested. The adjudicating authorities confiscated the goods under Section 111(m) of the Customs Act on the ground of misdeclaration, with option for redemption of the goods against payment of fine. They also imposed penalties on the importers under Section 112(a) of the Act. In some cases, similar penalties were imposed on the indenting agents and/or the CHA also. The authorities also confirmed demands of CVD against the importers by denying the benefit of the above Notification to them in respect of the computerised embroidery machines which were found to be without plotter. Where the duty or any part thereof had already been paid by the importer, the same was appropriated towards the demand. Any extra deposit made by importer at the time of provisional release of the goods was adjusted against fine and penalty. In respect of most of the imports made through Tuticorin Port, the adjudication was done by the Joint Commissioner of Customs, Customs House, Tuticorin and the remaining cases adjudicated upon by the Commissioner himself. Where Orders -in -Original were passed by the Joint Commissioner, the same were taken in appeal by the aggrieved parties to the Commissioner of Customs (Appeals), Trichy. The appellate authority rejected all the appeals on merits and affirmed the decision of the lower authority. Most of the appeals now before us are against the orders passed by learned Commissioner (Appeals), Trichy. The orders of adjudication passed by the Commissioner of Customs, Tuticorin, were also in the same line as those passed by the Joint Commissioner. Some of the appeals before us are against such orders of the Commissioner. In respect of the import made through the Chennai Seaport, the Joint Commissioner of Customs (Group 5A), Customs House, Chennai denied the benefit of the Notification to one M/s. Vora Creations in respect of the machine imported by them and confirmed demand of CVD against them. He also imposed a penalty on them under Section 114A of the Customs Act. A separate penalty under Section 112(a) of the Act was imposed on M/s.Macro Agencies, indenting agent, in India, of the foreign manufacturer/supplier of the machine. The appeal filed by M/s.Macro Agencies against the penalty imposed on them by the Joint Commissioner was dismissed by the Commissioner of Customs (Appeals), Chennai, whose order is under challenge in one of the appeals before us (C/29/2007).

(2.) TWO stay applications filed by the appellants in Appeal Nos. C/549/2006 and C/550/2006 are also before us. As the issue involved in the two appeals is identical to the one involved in the remaining batch of appeals, we have granted waiver of predeposit to the said appellants for the purpose of disposing of their appeals along with the other appeals.

(3.) EXAMINED the records including the written submissions filed by learned SDR. Heard both sides and considered their submissions.