Per G.R. Sharma :

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, Ld. 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, Ld. 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 his contention, he cited the cases reported in 2002 (138) ELT 360, 1999 (33) RLT 395 (CEGAT)=1999 (112) ELT 400 and 2001 (47) RLT 600 (CEGAT)=2002 (136) ELT 1057.

5. On the question of imposition of penalty, Ld. Counsel submits that it was not the intention of the importer to evade any duty. He submits that the importer had acted in a bona fide 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 supplier of the goods. He, therefore, prayed that imposition of penalty may be set aside.

6. Shri Atul Dikshit, Ld. 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 Ld. 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 anti-dumping 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 Tiwan. Ld. DR submits that there was a switch over of the Bill of Lading in-as-much 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 in-as-much as the entire manipulation was done [away] with the intent to evade payment of duty. He, therefore, prayed that no case is made out for setting aside th