2011 (8) TMI 807 - AT - Customs

Confiscation - importer - held that - the definition of importer under Section 2 (26) of the Customs Act, 1962, importer in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner or any person holding himself out to be the importer. In the instant case, part of the goods were seized before the clearance since it was lying in the Customs control and therefore, it cannot be said that M/s Tulsi Trading Co is not the importer. Valuation - market survey report - held that - the adjudicating authority had acknowledged receipt of documents relating to contemporaneous imports and had taken on record the same during the personal hearing - however he arrived at the assessable value based on some market survey conducted by the investigating agency - The so-called market survey is a sheet of paper wherein certain values are indicated without disclosing from whom these values were obtained and for what type of goods - matter remanded back.

Summary

Issues:
1. Confiscation of goods imported by M/s Tulsi Trading Co.
2. Redetermination of assessable value of imported goods.
3. Role and liability of Mr. Naresh Pandya in the import activities.
4. Legal validity of the impugned order by the Commissioner of Customs.

Confiscation of Goods Imported by M/s Tulsi Trading Co:
The case involved the import of goods by M/s Tulsi Trading Co, where discrepancies were found in the imported goods compared to the declaration. The Commissioner of Customs ordered reclassification of goods and confiscation under relevant sections of the Customs Act. However, the Tribunal noted that M/s Tulsi Trading Co was declared as the importer, and goods were seized from their possession. As per the Customs Act, the importer must be given an option to pay a fine in lieu of confiscation. Since part of the goods was already released to M/s Tulsi Trading Co, the Tribunal found the confiscation without offering this option to be incorrect in law.

Redetermination of Assessable Value of Imported Goods:
The appellants contested the redetermined assessable value based on an alleged market survey, claiming lack of details and evidence transparency. They argued that the valuation was done without considering invoices and import documents submitted during the personal hearing. The Tribunal agreed, noting that the impugned order did not reference the documents submitted, and the valuation was based on incomplete information. Consequently, the Tribunal found the valuation flawed and legally unsustainable.

Role and Liability of Mr. Naresh Pandya:
The appellant argued that Mr. Naresh Pandya had undertaken import activities on behalf of M/s Tulsi Trading Co, as evidenced by import documents. They cited a previous court ruling to support releasing goods to the importer despite potential misrepresentation in obtaining the Import-Export Code. The Tribunal considered this argument, emphasizing that M/s Tulsi Trading Co was declared as the importer, and the goods were imported in their name. Therefore, the liability of Mr. Naresh Pandya was a crucial aspect of the case.

Legal Validity of the Impugned Order:
The Tribunal reviewed the submissions of both parties and found glaring mistakes and shortcomings in the impugned order. It highlighted discrepancies in the treatment of evidence, lack of transparency in the valuation process, and incorrect application of confiscation laws. Consequently, the Tribunal set aside the impugned order and remanded the case back to the adjudicating authority for a fresh consideration, emphasizing the importance of a comprehensive review of all evidence and providing a fair opportunity for the appellants to present their case.

In conclusion, the Tribunal allowed the appeals by way of remand, ensuring that all issues remain open for further examination by the adjudicating authority.