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TMI Blog2003 (11) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. WH.F. CUT CLEANISH1 (F3) 150 170.00 365.00 62050 3. WH.F. CUT CLEANISH1 (F3) 16 78.45 365.00 28634.25 4. WH.F. CUT CLEANISH1 (F3) 100 14.73 365.00 5376.45 Total 667.38 298160.70 2. The unit has also declared in the said invoice that they had imported 952.64 cts. of cut and polished diamonds vide Bill of Entry No. 132, dated 18-4-1996 out of which they had exported 548.44 cts. leaving a balance of 404.20 cts. valued at US $ 2,02,100.00. Similarly in respect of the other Bill of Entry No. 2005, dated 27-2-1996, they had declared that out of the total quantity of 667.82 cts. imported, they had exported 404.64 cts. leaving a balance of 263.18 cts. valued at US $ 96,060.70. Thus in the said shipping bill, the unit had claimed that out of 667.38 cts. of cut and polished diamonds under export, 404.20 cts. valued at US $ 2,02,100.00 were initially imported and cleared vide Bill of Entry No. 132, dated 18-4-1996 and the remaining 263.18 cts of cut and polished diamonds valued at US $ 96,060.00 were imported and cleared vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds were found in the unit during the stock taking, a shortage of 404.20 cts of diamonds valued at US $ 2,02,100 equivalent to Rs. 70,83,605/- (CIF at the exchange rate prevailing at the time of import i.e. 1 USD=Rs. 35.05) and Rs. 71,54,441.05 (Assessable Value) was revealed. 5. Scrutiny of the registers maintained by the unit showing the consignment-wise utilisation of cut and polished diamonds revealed that the unit had imported 667.82 cts. of diamonds which was cleared vide B/E No. 2005, dated 1-4-1996. This 667.82 cts were found to have been bifurcated into two lots i.e. 288.42 cts (item No. 1 and 2 of the import invoice) and 379.40 cts (item No. 3 4 of the import invoice). The details of further utilisation of these lots were found to be as under :- (a) 288.42 cts Opening Balance 288.42 cts Exports till 1997 153.69 cts Opening Balance 134.73 cts Re-export on 20-2-1999 103.62 cts Balance 31.11 cts (b) 379.40 cts Opening Balance 379.40 cts Exports till 1997 24.41 cts Opening Balance 354.99 cts Re-export on 20-2-1999 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods in the bill of entry No. 132/96 because the average number of pieces contained in 404.20 cts. (item No. 1 of the table above) is 85 to 86 pieces per ct. as against the import quality of 150 pieces per ct. in the said bill of entry. He also agreed that 138.89 cts. out of the quantity mentioned in item No. 2 of the export invoice did not pertain to the import of diamonds under bill of entry No. 2005. He was one of the persons present during the stock taking. He did not dispute the conclusion arrived at by the department on the basis of the exercise. 9. The appellants plea before us is as follows :- (a) The department s attempt to correlate the imported goods with the export goods declared in the shipping bill without taking into consideration the instructions contained in the Ministry of Finance s Circular No. 40/2000-Cus., dated 12-2-2000 is misplaced. According to this circular, the appellants are required to account only for the caratage imported and they have done so. The show cause notice proceeds on the basis of the size of the diamonds mentioned in the bill of entry No. 132. Such a comparison is not in accordance with the instructions cited above. (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned by the appellants except stating that the registers maintained are defective. 12. The first issue is whether the quantity of diamonds mentioned at Sr. No. 1 in the table above tallied with the diamonds imported under bill of entry No. 132. Sr. No. 1 of the export invoice mentions a figure of 404.20 cts. and 150 pieces per ct. On examination, it was found that 404.20 cts. contained only 85 or 86 pieces per ct. It is admitted that the consignment imported under bill of entry No. 132 did have 150 pieces per ct. and not 85-86. The Commissioner dealt with this aspect in Paragraph 31 of his order. When the average weight of the diamonds under export did not tally with the ones mentioned in the bill of entry, it has to be construed that what is sought to be exported is different from what was imported. It is also a fact, as agreed to by Shri Marathe, Deputy General Manager, that the books of account maintained by the exporter has also shown that another 43 cts. of diamonds were not accounted for out of the one imported under bill of entry No. 132. We observe that the department s contention that the appellants fail to account for 447.20 cts. (404.20 + 43) out of the quantity import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty of suppression. The facts would not have come to light, but for the detailed inventory/stock taking undertaken by the department. Extended period is invocable under these circumstances. 17. The appellants further contention that there was labour trouble in their unit and that was why the registers were not maintained properly is neither here nor there. When the diamonds were cleared under Notification 177/94 by claiming duty free clearance, it is up to the importer to maintain proper accounts and satisfy the department that what has been imported duty free has been exported. The appellants failed to do so. 18. The appellants failed to fulfil the condition of Notification 177/94, dated 21-10-1994 under which they claimed duty free clearance of cut and polished diamonds. They are therefore liable to pay duty on the quantity not exported out of the duty free imports. The quantity not accounted for is determined by the Commissioner to be 468.12 cts. valued at Rs. 81,13,214/- CIF. The duty involved has been worked out to be Rs. 40,97,173/-. This has been rightly confirmed by the Commissioner. He imposed a penalty of equal amount on M/s. Su-Raj Diamonds (India) Ltd. under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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