2008 (12) TMI 209 - AT - Customs

Value of the imported oil had been arbitrarily fixed by authorities, as material relied on to determine value are not reliable, as the impugned goods were not tested for its chemical composition or quality by the customs. It has to be held that the assessable value was determined arbitrarily. In the circumstances, it would have been more reasonable to accept the quotations furnished by the importer to determine the assessable value. The matter is therefore remanded to the original authority to re-determine the duty liability on the impugned goods. - As regards the confiscation and penalty, I find that in the facts of the case there was no mis-declaration by the importer to attract confiscation of the impugned goods under Section 111(m) of the Act. - Confiscation of gear oil under Section 111(m) and the penalty under Section 112(a) are therefore not sustainable. The fine and penalty are set aside. The appeal is allowed by way of remand.

Summary

Issues:
1. Undeclared import of gear oil by the appellant.
2. Determination of assessable value of the gear oil.
3. Confiscation of the gear oil and imposition of penalty.
4. Appeal against the order of the Commissioner (Appeals).

Issue 1: Undeclared import of gear oil by the appellant
The case involved an EOU engaged in manufacturing and exporting floor coverings. The appellant imported a Second-hand Sisal Yarn Spinning Machine and spares, including 200 liters of gear oil, which was not declared. Proceedings were initiated against the appellant for non-declaration, leading to the demand for duty on the oil, its confiscation, a redemption fine, and a penalty under the Customs Act, 1962. The Commissioner affirmed the original authority's decision.

Issue 2: Determination of assessable value of the gear oil
The appellant argued that the assessable value of the gear oil was arbitrarily fixed at Rs. 525/- per liter by the authorities, while they claimed its market value was lower. They provided evidence of market quotations to support their claim. The authorities did not provide a legal basis for determining the value, nor did they test the quality of the oil. The Tribunal found the value determination arbitrary and remanded the matter to the original authority for reevaluation.

Issue 3: Confiscation of the gear oil and imposition of penalty
The authorities had confiscated the gear oil and imposed a penalty based on non-declaration. However, the Tribunal noted that there was no deliberate misdeclaration by the importer, as the oil was not concealed and was part of a consignment where several items were not declared. The Tribunal found that the charge of deliberate misdeclaration was not sustainable, citing a precedent where confiscation was vacated when goods were declared in the Bill of Entry. Consequently, the confiscation and penalty were deemed unsustainable and set aside.

Issue 4: Appeal against the order of the Commissioner (Appeals)
The Tribunal allowed the appeal by way of remand, granting the appellants an opportunity to be heard and present bills for the purchase of the imported gear oil to determine its market value for assessment under Customs Valuation Rules. The decision was influenced by a previous Tribunal decision where confiscation was vacated due to proper declaration in the Bill of Entry. The fine and penalty were set aside, and the appellants were given a chance to present their case further.