The Mumbai bench of Customs, Excise & Service Tax Appellate Tribunal ( CESTAT ) has held enhancement of value on voluntary statement cannot be a ground to invoke penal provisions/confiscation.
Appellant M/s. Neno Crystal, an importer, filed Bill of Entry for clearance of Chatons (Beads) of size SS-19 onwards but on examination by the Expert, at the instance of Customs Official, he found presence of SS-12 size Beads in the sample examined by him, value of which is more than the declared size of SS-19 onwards. Matter was adjudicated upon and the adjudicating authority had held that the goods were liable for confiscation under Section 111(m) of the Customs Act, 1962. He also re-determined the value under Rule 5 of Customs Valuation Rules, 2007, appropriated the Customs duty paid by and recovered from the importer and allowed redemption of imported goods under Section 125 of the Customs Act against payment of fine of Rs. 20,00,000/- as well as imposed penalty of Rs. 14,00,000/- on the Proprietor of the firm.
Being aggrieved by the said order, Appellant-Proprietor of M/s. Neno Crystal preferred an appeal before the Commissioner of Customs (Appeals). However, he reduced the fine and penalty amount substantially by holding that it should be commensurate with the offence committed by the Appellant and not to be harsh or excessively disproportionate. The legality of confirmation of fine and penalty is assailed before the Tribunal in the appeal.
The Tribunal observed that it would not be inappropriate to mention here that the appellant’s case is squarely covered by the judgment of Honorable Madras High Court in Commissioner of Customs (Sea), Chennai-I Vs. M.R. Associates [2013 (297) ELT 504 (Mad.)] wherein it was clearly held that enhancement of value based on voluntary statement concerning acceptance of value, may be for early clearance of goods, would not invoke penal provisions nor confiscation of goods can be made in lieu of redemption fine, and Commissioner (Appeals) has placed his reliance heavily on it but erroneously understood that in the said judgment there was confirmation of confiscation and redemption fine. Further, as could be noticed that the judgment of Honorable Supreme Court concerningnon-availability of guilt mind was not a precondition for breach of “Civil Obligations” is also not placed in its proper perspective. The meaning of “Civil Obligations”, in the legal parlance, is performance of certain action under the obligation of law which gives right of enforcing its performance to the other person in case of violation. In the instant case, as could be seen from the case record, appellant had filed Bill of Entry on the basis of the item description mentioned by the supplier in the import document and had agreed to pay duty on the enhanced value after the same was found to be item ofdifferent size. Learned Commissioner (Appeals) had observed in unequivable terms that the same importer i.e. appellant had cleared some goods at or around the same time at higher rate for which “deliberate undervaluation or mis-declaration to avoid duty is farfetched”.More importantly, he had also observed that in valuation of imported goods, there is no place for minimum Customs value but appellant preferred not to challenge the departmental action.
The Coram of Dr. Suvendu Kumar Pati, Member (Judicial) while allowing the appeal has held that“therefore, it cannot be said that appellant had made a tie or contract for payment of higher value, so as to make him liable for violation of “Civil Obligations” for the purpose of imposing penalty on him and it has been settled through judicial precedent that voluntarily acceptance of higher value and willingness to pay the duty at the enhanced rate would exempt the Appellant from liability of confiscation and redemption fine”.
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