ITEM NO.2                 COURT NO.6                 SECTION III

             S U P R E M E   C O U R T   O F   I N D I A                            RECORD OF PROCEEDINGS

CIVIL APPEAL NO(s). 1264-1265 OF 2008

COMMISSIONER OF CUSTOMS, NEW DELHI                       Appellant (s)

                       VERSUS

M/S. SIDDHARTHA POLYMERS LTD. & ANR.                     Respondent(s)

(With appln(s) for stay)(FOR FINAL DISPOSAL)

WITH 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 :         HON'BLE MR. JUSTICE S.H. KAPADIA         HON'BLE MR. JUSTICE B. SUDERSHAN REDDY

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                                O R D E R  

Appeals admitted.       The appeals are allowed with no order as to costs.

         (S. Thapar)         PS to Registrar

(Madhu Saxena) Court Master

The signed order is placed on the file.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.1264-1265 OF 2008

COMMISSIONER OF CUSTOMS, NEW DELHI ...APPELLANT (S)

VERSUS

M/S SIDDHARTHA POLYMERS LTD. & ANR. ...RESPONDENT(S)

     WITH

CIVIL APPEAL NOS. 3580-3581 OF 2008 CIVIL APPEAL NOS. 4353-4355 OF 2008

O R D E R

 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

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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  

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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.   

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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.

....................J. [ S.H. KAPADIA ]

New Delhi, ....................J September 16, 2008 [ B. SUDERSHAN REDDY ]