CIVIL APPEAL NO(s). 1264-1265 OF 2008
COMMISSIONER OF CUSTOMS, NEW DELHI Appellant (s)
M/S. SIDDHARTHA POLYMERS LTD. & ANR. Respondent(s)
(With appln(s) for stay)(FOR FINAL DISPOSAL)
Civil Appeal Nos.3580-3581 of 2008 – With appln. for stay & O/Report Civil Appeal Nos.4353-4355 of 2008 – With appln. for c/d in filing appeal, stay, exemption from filing c/c of the impugned judgment & O/R
Date: 16/09/2008 These Appeals were called on for hearing today.
CORAM :
For Appellant(s) Mr. V. Shekhar, Sr.Adv.
Ms. Aruna Gupta, Adv.
Mr. B. Krishna Prasad, Adv.
For Respondent(s) Mr. S. Ganesh, Sr.Adv. in CAs.1264-65/08: Mr. P.S. Sudheer, Adv.
Mr. Ragvesh Singh, Adv.
Mr. Rishi Maheshwari, Adv.
Mr. Anne Mathew, Adv.
Mr. Prem Ranjan Kumar, Adv.
Mr. Nilotpal Sharma, Adv.
in CAs.3580-81 & Mr. R. Venkataramani, Sr.Adv. 4353-55/08: Mr. Prem Ranjan Kumar, Adv.
Mr. Awanish Sinha, Adv.
Mr. Nilotpal Sharma, Adv.
Mr. Himanshu Shekhar, Adv.
UPON hearing counsel the Court made the following
Appeals admitted.
The appeals are allowed with no order as to costs.
(S. Thapar) (Madhu Saxena)
PS to Registrar Court Master
The signed order is placed on the file.
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.1264-1265 OF 2008
CIVIL APPEAL NOS. 3580-3581 OF 2008
CIVIL APPEAL NOS. 4353-4355 OF 2008
Appeals admitted.
This batch of Civil Appeals is filed by the Department against the decisions of
CESTAT, New Delhi, dated 19th June, 2007 and 14th August, 2007.
For the sake of convenience we refer to the facts in the case of M/s Siddhartha
Polymers Ltd. & Anr.
A Show Cause Notice was issued on 31st March, 2003 alleging that the imported
consignments had been mis-declared both in regard to description and value. In the Show
Cause Notice it was alleged that Prime Quality Goods (P.C. Sheets) were claimed as re-
generated/recycled which goods have been under valued at around US $ 1055 per M.T. as
against the normal value of over US
$ 3500 per M.T. Accordingly, the notice proposed to recover
short levied duty of around Rs. 10 crores under Section 28 of the Customs Act, 1962 +
penalty under Section 112. The Show Cause Notice was contested by the assessees.
Suffice it to state that the Commissioner (Adjudication), New Delhi, came to the
conclusion that as per Trade and Industry Practice only Prime Quality P.C. Sheets were
used in the advertising/signage Industry and the P.C. Sheets manufactured out of
recycled/regenerated polycarbonate did not find any use in the advertising/signage Industry
because the recycled/regenerated P.C. Sheets had spots and other impurities visible to the
naked eye in the said sheet. Adjudicating Authority analysed several documents. The
documents consisted of invoices, certificate of origin, certificate issued by the manufacturer,
documents submitted by the Indian Consulate in Hongkong, samples manufactured by the
foreign supplier etc. It is after examining these documents at great length that the
Commissioner
(Adjudication), New Delhi, came to the conclusion that the P.C. Sheets imported by the
noticee companies, which in turn were used in the advertising/signage Industries were not
made from recycled/regenerated material as claimed by the noticee. Therefore, it was held
that P.C. Sheets imported by the noticee Companies were Prime Quality Sheets and that the
noticee Companies had mis-declared the same both in terms of description
and value as regenerated/recycled P.C. Sheets. On the question
of valuation, the Commissioner found that the lowest average
export price from Korea to India of P.C. Sheets during the period 2000-2002 was US $ 3580 per M.T. and, therefore, that value constituted the correct assessable value for all the goods
imported during the period 1998 to September, 2001. Consequently, the demand notices
were confirmed.
Aggrieved by the said decision the matter was carried in appeal by the
respondents – assessees to the Tribunal. By the impugned judgment the Tribunal has,
after recording the
submissions of the counsel on both sides, held that on perusal of clearance Bills of Entry and
Invoice it cannot be said that the goods in question have not been described in any of the
documents. According to the Tribunal there was no mis-declaration in terms of description
as the documents described the Items as P.C. Sheets or Rolls. According to the Tribunal,
therefore, there was no mis-declaration or mis-description of the goods as found by the
Commissioner.
At this stage we may state that in all these cases the point which arises for
determination is that whether P.C. Sheets imported by the noticees were made out of re-
cycled or re-generated polycarbonate? This point has not been discussed or analysed in
detail by the Tribunal which is the final fact finding authority. After noticing the arguments
advanced on both sides the Tribunal merely states that there is no evidence either on the
point of mis-description or value and it straightaway comes to the conclusion that the
findings given by the Commissioner are unsustainable.
In our view, the impugned judgment of the Tribunal is perfunctory. It does not
analyse the evidence on record. Whether the Adjudicating Authority was right or wrong is
not being answered by us? Our objection is directed only to the way
in which the Tribunal has disposed of the appeals filed by the assessee before it. Therefore,
keeping all questions open and keeping all contentions on both sides expressly open, we set aside the impugned judgments of the Tribunal dated 19th June, 2007 and 14th August, 2007
and remit the matters to the Tribunal for de novo consideration in accordance with law,
both on the question of mis-description as well as on the question of under valuation. We re-
iterate that we express no opinion on the merits of the case. Accordingly, the Department's
Civil Appeals are allowed with no order as to costs.
The Tribunal is requested to hear and dispose of these
appeals within a period of six months from today. It is made clear that during the pendency
of the matters before the Tribunal, Department shall not take any coercive steps.
September 16, 2008 [ B. SUDERSHAN REDDY ]