9911796707
TMI Blog2006 (7) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... ecember 3, 2003 and, upon reply thereto being filed by the appellants the Commissioner of Customs passed the Order-in-Original on April 19, 2004 classifying the subject goods in the manner directed in the said order and increased the CIF value thereof as declared by the appellant to Rs. 37,87,479.64. The Commissioner also ordered confiscation of the goods under Section 111(m) of the Act, but allowed redemption thereof upon payment of a fine of Rs. 9 lakhs. A penalty of Rs. 2 lakhs upon the appellant under Section 112(a) of the Act was also imposed. 1.2 (a) Being aggrieved by the said order dated April 19, 2004 of the Commissioner the appellant, inter alia, preferred an appeal being Appeal No. CDM 108/2004, before this Tribunal. (b) By an order number S-331/KOL/2004 dated July 1, 2004 this Tribunal was disposed of the stay petition filed by the appellant by directing the appellant to deposit Rs. 5 lakhs within a period of four weeks and penalty shall remain dispensed, thereafter this Hon ble Tribunal by an Order No. A-799/KOL/04 dated November 8, 2004 [2005 (183) E.L.T. 278 (Tri. - Kolkata)] recording several infirmities of the said order dated April 19, 2004 of the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng this order, so far as the appellant is aware of, has not been challenged by anybody before any superior court and, as such, has become final. In paragraph 3 of the said order it was observed by this Tribunal as follows :- We have heard both sides. We find that in this case, there was no application from the assessee for provisional release before the Revenue. The same should be produced before the Bench. As regards the Commissioner's observation on the Order passed by the CESTAT we are constrained to observe that the Commissioner does not know the provisions of law. It has been held by various Courts that the Orders of the Tribunal are binding on all Revenue Officers and the Assessee unless set aside by the superior courts, If the Commissioner was not agreeable with the Remand Order passed by this Tribunal with certain directions, he should have gone to appeal before the Higher Courts. But he had no power to sit over on judgment upon the Tribunal s decision. A copy of this Order be sent to the Chairman, C.B.E.C., New Delhi for further action as deemed fit. This Miscellaneous Application thereafter came up for hearing again on September 27, 2005 when by an Order No. M-387/K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 27, 2002 in order to come to a finding of misdeclaration. Such reasoning was rejected by this Hon ble Tribunal since the said Public Notices are issued only as and by way of directives for avoiding any hindrances in the assessment of the bill of Entry by the Appraising Group and for smooth and speedy clearance of the imported goods and the said Notice No. 112/2002 dated February 27, 2002 does not warrant for any penal consequences in default following is not mandatory. (c) The Commissioner s rejection of the invoice for allegedly having no full particulars, make etc., fails to appreciate that the Department during examination of the goods has reported that the goods were as per invoice. If the particulars were not sufficient, as alleged, how could the Department s own officer could certify the same? (d) Provisions of Section 17 of the Customs Act, 1962 stipulate, inter alia, that the proper officer should assess the goods to duty on the basis of statements made, in the entry, i.e. Bill of Entry, the documents produced and the information furnished and obtained. In the instant case, the appellant filed the Bill of Entry with documents, the Department examined the goods and par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Customs, 2000 (122) E.L.T. 321 (S.C.) has clearly held that neither Section 14(1) nor the Valuation Rules allow determination of the ordinary international value of the imported goods on the basis of date other than the price actually paid for the goods. There is no allegation nor finding that anything more than the price declared of the subject imported goods have been paid in the instant case. Hence, transaction value as declared, cannot be rejected and the Commissioner has erred in law in doing so. The onus to establish undervaluation of the goods, which was and is on the Customs Authorities, and shifted to the appellant, by methods known to law and in a satisfactory manner, as held by the Supreme Court in Sounds-N-Images v. Collector of Customs, 2000 (117) E.L.T. 538 (S.C.), cannot be said to have been satisfied in the instant case. Hence there is no justifiable legal basis or reason whatsoever not to accept the Transaction Value of the said goods declared by the appellant and determine the assessable value thereof on this basis. (g) In this view Commissioner has erred in holding that the case is a case of smuggling by mis declaration of almost everything and that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause notice and the char 5 contained therein would demonstrate the patently incorrectness of such wild allegations made in the said order. (k) The finding of the Commissioner regarding Rule 10A(2), is also untenable and unsustainable. The show cause notice had been issued under Section 124 of the Act and not under Rule 10A(2) of the Customs Valuation Rules, 1988. Further, there was no personal hearing before coming to any final decision under Rule 10A(1) of the said Rules. The said Rule Stipulates that the Department shall intimate the importer in writing the grounds for doubting the truth or accuracy of the value declared in relation to goods imported by such importer and provide a reasonable opportunity of being heard, before taking a final decision. There has been compliance with the said mandatory requirement of law. (l) The Commissioner has erred in ordering to confiscate the imported goods under Section 111(m) of the Act. For the reasons as arrived as no condition precedent for confiscating the said goods under Section 111 of the Act, including Section 111(m) thereof, has not and cannot be said to have been satisfied. The direction allowing redemption of the said goods ..... 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