ORDER
G.R. Sharma, Member (T)
1. M/s. Shiwalya Spinning & Weaving Mills (P) Ltd. and M/s. Shiwalya Trading Coprn. have filed the captioned two appeals being aggrieved by the orders passed by the ld. Commissioner confirming demands for duty as also penalties imposed. Since the issue in both the appeals is the same, they were heard together and are being disposed of by this common order.
2. The facts of the case in brief are that the appellants imported certain consignments of acrylic staple fibre and declared them to be of Taiwanese origin. They filed Bills of Entry. The goods were cleared on payment of duty. Enquiries later on conducted revealed that the goods were of Thailand origin on which anti-dumping duty was leviable in terms of Notification No. 81/97. The appellants paid the duty and also paid 25% of the penalty imposed within one month from the date of the order.
3. Arguing the case for the appellant Shri L.P. Asthana, Id. Counsel submitted that the appellants had paid higher amount of anti-dumping duty which was provisionally determined but subsequently was reduced. He, therefore, submitted that this needs re-calculation of duty and refund of the amount paid in excess. Ld. Counsel referring to the circular issued by the Central Board of Excise & Customs clarifying that for purpose of calculating CVD anti-dumping duty need not be included in the price. He, therefore, submitted that this also shall need re-calculation of duty and a refund claim may arise on this account also. Ld. Counsel also submitted that since the imported goods are now considered to be of Thai origin, the value of the goods shall have to be redetermined as the goods of Thai origin are cheaper.
4. On the question of levying redemption fine, Id. Counsel submits that there are a number of judgments of the Apex Court in which it has been decided that in case the goods were not available for confiscation, redemption fine cannot be imposed. In support of Ids contention, he cited the cases reported in 2001 (138) E.L.T. 360 (T), 1999 (112) E.L.T. 400 (T) and 2001 (136) E.L.T. 1057 (T).
5. On the question of imposition of penalty, Id. Counsel submits
that it was not the intention of the importer to evade any duty. He submits
that the importer had acted in a bonafide manner and have prepared the Bill
of Entry on the basis of the documents received by him. He submits that if at
all there was any mistake, it was a bona fide mistake on the part of the sup
plier of the goods. He, therefore, prayed that imposition of penalty may be
set aside.
6. Shri Atul Dikshit, Id. DR submits that in so far as the recalculation of duty on account of the final anti-dumping duty being less than the provisional and on account of calculating the CVD in terms of Board’s circular and in regard to value of goods of Thai origin being lower, he reiterates the findings of the authorities below.
7. In regard to redemption fine Id. DR submits that he has nothing to add in view of the judgments of the Hon’ble Supreme Court cited by the Counsel for the appellant.
8. He submits that in so far as imposition of penalty is concerned, the appellant was not a new importer of the goods. He submits that the appellant had been importing the goods from Thailand; that when antidumping duty was levied on goods of Thai origin, the appellant instead of placing orders with the manufacturer in Thailand placed orders with a firm in Taiwan. Ld. DR submits that there was a switch over of the Bill of Lading inasmuch as the goods actually came from Thailand. They never touched any port in Taiwan but in Taiwan, the Bill of Lading were changed. Ld. DR submits that no doubt it was at the instance of the Thai supplier but it can be only on the instructions issued by the Indian importer. Ld. DR submits that therefore, a penalty was warranted inasmuch as the entire manipulation was done with the intent to evade payment of duty. He, therefore, prayed that no case is made out for setting aside the imposition of penalty.
9. We have heard the submissions of both the sides. We note in the instant case that refund shall arise on account of the final anti-dumping duty
being less than the provisional which was paid by the appellant. Recalculation of duty will arise on account of the clarification given by the Central Board of Excise & Customs while calculating Countervailing Duty as indicated by the Id. Counsel in his submission. Further duty shall need recalculation on account of the contention of the appellant that the price of goods of Thai origin should be lower than the price of the goods of Taiwanese origin.
10. This will need recalculation of duty and refund of the excess amount, if any, calculated from the above three counts. In so far as redemption fine is concerned we agree with the contention of the ld. Counsel based on the decisions of the Apex Court cited by him that when the goods are not available for confiscation, redemption fine cannot be imposed. Hence, the order imposing redemption fine is set aside.
11. In so far as imposition of penalty is concerned, we find that there was force in the arguments of the Id. DR and therefore, penalty was imposable. However, in the instant case, penalty should be decided after recalculating the duty by the Commissioner which should not exceed 25% of the penalty paid. In view of the contention of the Id. Counsel for the appellant that in case 25% of the penalty is paid within a month, remaining penalty need not be paid.
12. The appeals are disposed of in the above terms and remanded to the Commissioner concerned.