ORDER
D.N. Panda, Member (J)
1. The short question involved in this appeal is whether the appellant according free consent for enhancement of the value of imported old and used colour monitor, by its letter dated 8/3/04, forgoing right to Show Cause Notice, can resile and challenge the order of adjudication made in accordance with the prayer for redetermination of value of the said goods.
2. The appellant imported old and used colour monitor. Customs Authorities finding value of such imported goods disclosed in the bill of entries and connected invoice not being competitive, directed for re-determination of value thereof by a Chartered Engineer. By letter dated 8/3/04, the Appellant accorded its free consent to the proposal and also conveyed that it forgoes right to service of S.C.N. as well as did not intend to participate in adjudication process. Also it consented for no service of order of adjudication. By that letter, the appellant also agreed for enhancement of value of the imported goods. Consequent on such communication, value of the imported goods was determined by a third party Chartered Engineer and such value was adopted for adjudication by order dated 23/3/2004. Consequence of adjudication was confiscation of goods granting option to Appellant to redeem the goods depositing fine of Rs. 9.00 Lakhs. Penalty of Rs. 1,80,000/- was also imposed under Section 112 of Customs Act, 1962.
3. The appellant came in appeal against aforesaid order of adjudication with the grievance that S.C.N. was a necessity to adjudicate the matter and its letter dated 8/3/04 was misused against the Appellant. That did not contain any endorsement by the appellant showing its consent for assessment on the basis of enhanced value. Also its grievance was that genuinity of the invoice not being controverted by Department, any valuation by Chartered Engineer was uncalled for. If at all any value was suggested by chartered engineer that was not conclusive. The adjudication order failing to show how the price claimed by the appellant was not competitive, was baseless.
4. Ld. Counsel appearing for the appellant submitted that entire process of adjudication was bad when there was violation of principles of natural justice. Chartered Engineer’s valuation was not confronted to the appellant. Although the appellant concurred with enhancement of value, it had not violated Exim policy or Customs law. Therefore, valuation adopted by the authority was baseless.
5. Mr. Loni, Ld. JDR appearing for Revenue submitted that when there was clear consent given by appellant for determination of the value of the imported goods and also waived right to be heard in person, the Appellant does not have any grievance at this stage after adjudication. Furthermore, the Appellant opted not to receive S.C.N. which is clear from its letter dated-8/3/04. Entire conduct of the Appellant shows that the appellant had a pre-meditated mind to litigate by dilatory tactice and has malafide intention to challenge the order on mere technicalities and on pulpable grounds. The appellant having accorded free consent for valuation and enhancement of value, that clearly establishes that value of the goods imported were mis-declaration by way of under valuation. Therefore, the appeal should be dismissed.
6.1 Heard both sides and perused the record.
6.2 Appellant’s grounds of objection to the impugned order that it did not state by letter dated 8/3/04 to agree for enhancement of the value was not contradictated by any evidence to come to its rescue. Ld. Commissioner while passing order of adjudication relied on the letter dated 8/3/04 and referred the matter of valuation to a Chartered Engineer. Determination of the value was done following due process of law, which remained unchallenged and that too the same was done with free consent of Appellant. The value so determined was used in assessment without challenging the basis by the Appellant. Curiously, the appellant opted to give up its right for replying to S.C.N. for which it did not want service of S.C.N. Also the Appellant did not participate in the hearing process. Letter dated 8/3/04 of the Appellant categorically stated that the appellant did not opt to get order of adjudication. If the appellant waived its entire right for causing appearance and did not contradict the evidence relied on adjudication, it has no option to resile when free consent was accorded as above. The assessment is therefore not impeachable. The appellant, thus cannot resile from its averment made by letter dated 8/3/04.
6.3. In view of the aforesaid observations, finding the chartered engineer’s report uncontroverted, the order of adjudication does not appear to have suffered from legal infirmity. Appellant’s concurrence for enhancement of value established conduct of under valuation. However, malafide intention of under valuation not being patent from record, we consider it proper to reduce the Redemption fine to Rs. 5.00 Lakhs (Rupees Five Lakhs) as against Rs. 9.00 Lakhs that was imposed by the impugned order. This shall meet the end of justice.
6.4 For the reasons aforesaid, it has become no necessity to go to further submissions of the appellant and the citations relied upon in the synopsis filed in the course of hearing.
7. In the result, except reduction of redemption fine to the extent indicated above, the appeal is otherwise rejected.
(Operative part of the order already pronounced in the Court)