NIKHIL K. SARKAR Vs. COMMISSIONER OF CUSTOMS, AHMEDABAD

JUDGEMENT

(1.) THE preventive wing of Customs department conducted a search of the premises of M/s. Deluxe Roadlines Pvt. Ltd. used as a godown and found 243 cartons weighing 12138 kgs of imported polyester yarn of Malaysian origin which were packed in used/second hand cartons. Shri Shakti Singh Kaundal, Manager of the godown produced documents for 191 cartons of the imported yarn but could not produce any supporting documents for remaining 52 cartons. He stated that the 191 cartons weighing 10,136 kgs of imported yarn were purchased from the appellant and 52 cartons weighing 2002 kgs of imported yarn belonged to Shri Bhandari whose whereabouts were not known to him. The appellant stated that 191 cartons of imported yarn were purchased from Shri Devendrabhai of Ahmedabad whose full name and address was not known to him. Shri Mahesh P. Gupta, Regional Manager of M/s. Deluxe Roadlines Pvt. Ltd. stated that 2002 kgs of imported yarn were booked by Shri Rajesh Dhunichand Singhal, Yarn broker in the name of Shri Bhandari and the entire lot was delivered at his godown by both the yarn brokers.

(2.) THEREAFTER , 10,136 kgs of imported polyester yarn were seized and further proceedings were initiated. After adjudication and appeal proceedings, the impugned order has been passed upholding confiscation of the seized goods, confirming redemption fine of Rs. 2,40,730/ -. Further, a penalty of Rs. 50,000/ - has been confirmed against the appellant. Hence, the present appeal.

(3.) SHRI S. Suriyanarayanan, learned advocate appearing on behalf of the appellant submits that he has no dispute as regards liability of the goods to confiscation in view of the fact that the appellant was not in a position to show that the goods were not smuggled in view of the fact that the goods in this case are notified under Section 123 of the Customs Act, 1962, which shifts the burden of proving that the goods are not smuggled to the appellant. However, it is his submission that the appellants contention that the value adopted for the purpose of charging duty and imposing redemption fine is market value of the goods and not the assessable value has not been considered. He submits that the value taken by the department at Rs. 95/ - per kg was the market value and it has to be treated as cum -duty value for the purpose of charging customs duty and therefore he is entitled to relief on this score. In this connection, he drew our attention to the show cause notice wherein in the statement recorded from the appellant, it emerges that he has fully agreed to the value arrived at by the officers at Rs. 9,62,920/ - (at Rs. 95/ - per kg) in the Panchnama. He also stated that he is fully agreed to the market value. According to him, this shows that in the Panchnama as well as the statement of the appellant, what was recorded was the market value of the polyester yarn and not the ex -duty value of the imported goods. Further, he also submits that this contention has been rejected only on the ground that the appellant failed to show any evidence of contemporaneous import. It is his submission that once it is recorded that the value in the Panchnama is the market value, there would be no need to show the assessable value of the similar imported goods since the assessable value can be worked out from the market value by allowing the duty element to be deducted. He also requests that in the light of submission, once the value is reduced for the purpose of calculation of duty, redemption fine and penalty also have to be reduced correspondingly. Therefore, he prays that the matter may be remanded to the original adjudicating authority with direction to treat Rs. 95/ - per kgs as cum -duty price and arrive at duty liability and also re -consider the redemption fine and penalty leviable. He also cites the decision of the Tribunal in case of M/s. Ashwanikumar Jain as reported in 2004 (173) E.L.T. 260 (Tri -Delhi) on support of his contention that the redemption fine has to be fixed on the basis of profit element, market value and assessable value of the goods. Further, he also cited the decision of the Tribunal in Order No. A/546 and 547/WZB/AHD, dated 8 -12 -06 in the case of M/s. Shree Ambaji Fibres (P) Ltd. and other, wherein it has been held that where the goods are confiscated, the market value has to be taken into consideration and in that case, it was also held that the Commissioner was in error for having gone by export price.