Whether confiscation and penalty imposable for undervaluation if there is no mention of the section 111(m)?

PJ/Case law/2013-14/1909

Case:- OFFICE DEVICES VERSUS COMMISSIONER OF CUSTOMS, COCHIN

Citation:- 2013 (295) E.L.T. 545 (Tri. – Bang.)

Brief facts:-The appellant imported 21 used photocopiers of various models on 29-9-2004. During the course of assessment, the value was found to the lower than contemporary import price and, accordingly, the value was revised and workedout to Rs. 12,32,066/- which was accepted by the appellant. Further a viewwas also taken that second hand photocopiers import by the appellant was in contravention of Foreign Trade Policy and the photocopiers were restricted for import under paragraph 2.17 of the Policy as per clarification issued by DGFT vide Circular No. 19 dated 11-11-2003. The original authority confiscated the goods under Section 111(d) of the Customs Act, 1962 and allowed to be redeemed on payment of a fine of Rs. 2,25,000/- and also a penalty Of Rs. 1,00,000/- under Section 112 of the Act. Hence this appeal.

Appellant’s Contention:- The appellant submits that the issue as regards importability of second hand photocopiers is settled by the decision of the Honorable Supreme Court in the case of M/s Commodities Pvt. Ltd. v. Commissioner of Customs, Cochin[2009 (235) E.L.T. 385 (S.C.)]wherein, it has been held that the photocopiers are capital goods and DGFT could not have issued a Circular clarifying that import of the photocopiers are restricted. Therefore, he submits that the decision of the lower authorities confiscating the goods and imposing fine and penalty is required to be set aside.

Respondent’s Contention:- The Respondent submits that even though the goods are not liable to confiscation in view of the decision of the Hon'ble Supreme Court, the confiscation is sustainable and the penalty is imposable in view of the fact that the goods were undervalued. The undervaluation has not been challenged by the appellant at all and, therefore, penalty was imposable and goods are liable to confiscation.

Reasoning of Judgment:- Tribunal considered the submissions made by both sides. As submitted by the learned counsel, the Hon’ble Supreme Court in the case of Atul Commodities Pvt. Ltd.(supra) has held that the DGFT has no authority to issue clarification that the import of photocopiers is restricted and such action could be taken only by the Central Government by issuing a Notification and this was done on 19-10- 2005. Therefore in 2004, when the photocopiers were imported by the appellant, the same cannot be considered as restricted being capital goods. Therefore, photocopiers imported by the appellant have to be held as freely importable at the relevant time of import and the decision of the lower authorities in this regard cannot be sustained.

Coming to the submission of the Respondent that confiscation of the goods and imposition of fine and penalty are valid in view of the undervaluation and on going through the Order-in-Original, it is found that the goods have been confiscated under Section 111(d) of the Customs Act, 1962. Section 111(d) reads as under :-

'The following goods brought from a place outside India shall be liable to confiscation : -
(d) any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force;"

They also added that as it can be seen, this would be applicable only in respect of the goods which are imported or attempted to be imported, contrary to any prohibition imposed by or under Customs Act or any other Act. For undervaluation, the goods are liable to confiscation under Section 111(m) of the Act which provides for confiscation of goods which do not correspond in respect of value or any other particular with entry made in the Act. In this case, no doubt, the goods are liable to confiscation under Section 111(m) of the Act in view of acceptance of undervaluation by the appellant at the time of original adjudication proceedings. However, unfortunately, the original adjudicating authority nowhere in the Order-in-Original has considered this aspect for taking a view that the goods are liable to confiscation. Neither in the findings nor in the order, the provisions relating to undervaluation and consequence thereof have been considered. In these circumstances, the only conclusion that can be reached is that the original authority did not contemplate confiscation of goods or imposition of penalty as far undervaluation is concerned. In these circumstances, the submission of the respondent has to be rejected. Thus, in the view of the above discussion, the appeal has to be allowed. Accordingly, the appeal is allowed with consequential relief to the appellant.

Decision:- Appeal Allowed.

Comment:-The analogy that is drawn from this case is that sometimes the defects in drafting the show cause notice or the order in original may prove advantageous to the assessee. In the present case, the confiscation was to be held for undervaluation under section 111(m) but as there was no mention of the same, the appeal of the assessee was allowed because the confiscation proposed for prohibited goods was held to be improper as it was observed that DGFT had no power to restrict import of any goods.

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