2015 (10) TMI 197 - AT - Customs

Quantity in excess of declared quantity Confiscation of goods and imposition of penalty Appellant filed Bill of Entry through their CHA, declaring import of goods as polyester knitted fabric and viscose knitted fabric In checking, Viscose knitted fabrics were found in excess of declared quantity and was alleged that importers are resorting to mis-declaration of value of import of fabrics from China Commissioner confiscated goods and imposed penalty Held that - Commissioner has not examined as to whether variation in weight of imported fabrics was on account of moisture content or otherwise Also commissioner has not referred any evidence before discarding transaction value and consequently, its enhancement Plea taken that entire quantity of imported fabrics were confiscated for concealment and not for mis-declaration of value, is required to be deliberated in detail Therefore order of commissioner is cryptic and not speaking one and liable to be set aside Commissioner directed to address all issues raised by both parties and pass fresh order after hearing Appeal disposed of.

Issues:
- Mis-declaration of value of imported fabrics
- Confiscation of excess quantity of viscose knitted fabrics
- Confiscation of knitted fabric used for concealing excess quantity
- Imposition of penalties and redemption fines
- Request for weighment before assessment
- Discrepancy in quantity of imported fabrics
- Application of Customs Valuation Rules
- Appeal against the order of the Commissioner of Customs

Analysis:
1. Mis-declaration of value of imported fabrics:
The case involved mis-declaration of value of imported fabrics, leading to a proceeding initiated against the importer. The Commissioner confiscated excess quantities of viscose knitted fabrics and imposed penalties under relevant sections of the Customs Act, 1962. The Appellant challenged these actions, arguing that there was no intention to conceal the goods and citing the necessity of two types of goods for concealment. The Advocate relied on a judgment from the Calcutta High Court to support the argument against mis-declaration.

2. Confiscation of excess quantity of viscose knitted fabrics:
The Commissioner confiscated the excess quantity of viscose knitted fabrics under Section 111 (m) of the Customs Act, 1962. The Appellant contended that the variation in weight was due to moisture content and differences in weighing scales, not intentional concealment. The Appellant sought the amendment of the Bill of Entry for weight difference, which was not considered by the Commissioner, further challenging the confiscation.

3. Confiscation of knitted fabric used for concealing excess quantity:
Additionally, the Commissioner confiscated knitted fabric used for concealing the excess quantity of viscose knitted fabric under Section 119 of the Customs Act, 1962. The Appellant argued against the application of Section 119, stating that there was no concealment as evidenced by the lack of variation in the length of fabric and number of bundles. The Advocate highlighted the need for weighment before assessment, which was not conducted by the Department.

4. Imposition of penalties and redemption fines:
Penalties and redemption fines were imposed on the importing firm for mis-declaration and other violations. The Appellant challenged the penalties, citing lack of evidence from the Revenue to reject the transaction value and failure to consider the request for weighment before assessment. The Advocate referenced various legal decisions to support the argument against the imposed penalties.

5. Request for weighment before assessment:
The Appellant specifically requested weighment before assessment, which was not granted by the Department. This issue was raised to challenge the assessment process and to highlight the importance of accurate weighment in determining the value and quantity of imported goods.

6. Discrepancy in quantity of imported fabrics:
The discrepancy in the quantity of imported fabrics, as declared in the packing list and invoices, was a key point of contention. The Appellant argued that the variation in weight was due to moisture content, not intentional mis-declaration. The Tribunal found that the Commissioner did not adequately address the reasons behind the quantity variation, leading to a remand of the case for further consideration.

7. Application of Customs Valuation Rules:
The Advocate contested the re-determination of the value of imported fabrics without discarding the transaction value and without providing evidence of contemporaneous imports. The Tribunal noted the lack of justification for not conducting weighment before assessment and the need to consider all relevant factors in determining the value of imported goods.

8. Appeal against the order of the Commissioner of Customs:
The Tribunal set aside the order of the Commissioner, citing that various issues raised by the Appellant were not adequately considered. The Tribunal found the Commissioner's order to be cryptic and not sufficiently detailed, leading to a remand of the case for a fresh order after addressing all raised issues. The Tribunal directed the Department to conduct weighment of the goods in the presence of the importer's representative within a specified timeframe.

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