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TMI Blog2006 (7) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... instead of under Tariff Heading No. 59069990 classified by the appellant in the Bill of Entry, rejecting the value thereof declared by the appellant, under Rule 10A of the Valuation (hereinafter referred to as the Valuation Rules ) and redetermined the same at Rs. 2122.59, per sq. mtr. and increased the value from Rs. 6,77,944.32 declared by the appellant to Rs. 95,46,096/- under Rule 8 of the Valuation Rules. The Commissioner also imposed a penalty of Rs. 10 lakhs upon the appellant under Section 112 of the Act. FACTS 1.2 The appellant imported 366 Rolls containing 12288 kgs. Of Rubber Coated Fabric (Surplus) Assorted Colours Sized and length (hereinafter referred to as the said goods ) from M/s. Masood Sadiq Trading Est, Sharjah, U.A.E. (hereinafter referred to as Overseas supplier ) under Invoice No. MS/257/2005 dated July 13, 2005 of value US Dollars 15360 CIF, Calcutta. The Invoice, Packing List and Bill of Lading forwarded by the overseas supplier disclosed the nature of the goods, nature of packing, quantity, net weight, the Shipping documents contained no mention of country of origin nor was the Certificate of Origin included in the shipping documents sent. The HS C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... list duty signed. C/E to report on the aspect of goods being Seconds quality as claimed by party vide letter 5-9-05 C/E to also report how much wastage can be allowed if goods found to be seconds quality. Any printed material found with the goods may please be sent to group Rep. Sample of all types/colours may be forwarded to group clearing withheld. And on September 21, 2005, pursuant to the aforesaid re-examination order of the Group 100 per cent of the said goods were re-examined in the presence of the Deputy Commissioner of Customs BL (CFS), Shed Appraiser and Chartered Engineer. Examination Report dated September 21, 2005 under the joint signatures of Shed Appraoser Deputy Commissioner, BL (CFS) read as under : Opened the container re-examined the goods by opening 100% pkgs for appraisement in presence of DC BL (PFS) Chartered Engineer, checked declaration, particularly the qty in square metre w.r.t. the detailed packing list have been found as per Chartered Engineer s report, which is duly signed attached with the B/E No. printed materials have been found with the goods. Rep. Samples of all types/colour have been drawn sealed in presence of party s Rep. and fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rubber blanket to transfer ink to master cylinder roller. Any defect on the rubber blanket will interrupt proper printing. Blankets are made to sizes and if any defect located in between, that particular size have to be rejected. The defect, which appeared in the middle, whole width to be rejected upto the length of the damage marks. Damages located are as follows - 1. Scratch marks 2. Water strain marks 3. Hardness more than the specified limit Material is of second quality, so damages are inherent in nature. Salvage The salvage material has alternative use, may be used as buffer liner under the Rubber Blanket Roller. The value of the salvage may be considered as 10% of value as per invoice. A copy of the aforesaid ADEMDUM Report dated September 23, 2005 is at page 35 of the Appeal Petition. 1.7 On November 7, 2005 when the Department, even after the re-examination of goods and receiving examination reports from their own officers and Chartered Engineer and despite of appellant having submitted letter dated September 5, 2005 as required by the Department, being under severe strain of financial hardship and in view of the fact that container storage charge had alr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igin (UK) at (different Ports of India ranged from Rs. 1557 to Rs. 7466 per sq. metre and that most of the imports took place at the unit price of Rs. 2122.59 per sq. metre or US.$48.57 per sq. metre . On this premises, the Commissioner decided the value of the imported goods at Rs. 2122.59 per sq. metre in terms or Rule 8 of the Customs Valuation Rules, 1988 read with Section 14(1) of the Customs Act, 1962. Significantly, in the said order, neither the DOV date documents have been disclosed nor these was disclosed any particulars which evidenced alleged imports of most of the imports at the unit price Rs. 2122.59 per sq. metre during the material period. Further, from the DOV data available on the internet relating to the period June 2005 to October 2005 (the subject import took place in late July, 2005), it would be seen that there is not a single instance of import of printers blankets of UK origin at Rs. 2122.59 per sq. metre. It would also be seen that, contrary to what has been stated in paragraph 10 of the said order, the lowest price of such goods was Rs. 710.87 (on July 22, 2005) and not Rs. 1557 per sq. metre. Thus the very basis of the . valuation of the said goods as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Assistant Commissioner (Dock) and a Chartered Engineer to ascertain whether the goods are of Seconds quality and to determine the square metres of the subject imported goods, the Chartered Engineer in his reports dated September 19, 2005 specifically mention that the consignment is of second quality and that a portion of the material under import may be used as rubber blanket in offset printing machine and for that purpose sheet is to be cut to sizes and in the said process there will be some wastage; however, for the said purpose the shore hardness should be between 32 to 40, whereas 50% of consignment s hardness is over 45 shore hardness, which renders the same useless for the said purpose. So according to the Chartered Engineer, salvage is 50% and the remaining was to be valued at the rate of 10% of the cost of salvage portion. The Chartered Engineer thereafter determined the average value of the goods to be US $3.01V per metre which, if calculated for 4658.71 sq. metres would come to US $14022.71 i.e. below the appellant s declared value. The re-examination report dated September 21, 2005 given jointly by the Shed Appraiser and Deputy Commissioner BL (CFS) clearly held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence to show that the said goods are indeed of UK origin. The Commissioner has therefore erred in holding, that the appellant had produced documents to show that the goods are of UAE origin. No such document, as aforesaid, was or could be, produced by the importer. The declaration was made in the circumstances mentioned. Hence, the same cannot be made a ground to penalize and/or hold that there was mis-deciaration. A declaration induce coerced by an act of non clearance by the Officers, as in this case cannot be a misdeclaration. 2.5 Not only the Chartered Engineer s Report but also the Shipping Documents furnished by the overseas supplier indicate that the said goods are not simply rubber blankets as erroneously held by the Commissioner but it contains part of textile materials. Therefore, it was incumbent on the part of the Commissioner to obtain test reports and then determine whether the goods are covered or not by Chapter Note 4 of Chapter 59 of the Customs Tariff. In the instant case, the Commissioner has not come to any finding, to the effect as to why the goods cannot be classified under Chapter 59.06 applying Chapter Notes Sl. No. 4 of Chapter 59 of the Customs Tariff. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mination was conducted in presence of his own officers who countersigned the said examination report of Chartered Engineer. Therefore, now the Commissioner cannot ignore or overlook the said report and hold the same to be redundant. The fact that goods are damaged and/or Second is clearly borne out from the examination report itself irrespective of the fact whether the goods were further examined by Chartered Engineer and his own officers. The said report of the Chartered Engineer is binding on the Department as an Expert opinion brought on record by the Department as they had solicited the same. Therefore there is no misdeclaration of the goods to be upheld. 2.7 (a) Commissioner has wrongly determined the value of the goods under Rule 8 of the Valuation Rules without appreciating the procedure to be adopted for Valuation of the imported goods under Section 14 of the Act read with the Valuation Rules. Rule 3 (ii) of the Valuation Rules 3(ii) clearly states if the transaction value is not acceptable, the value shall be determined by proceeding sequentially through the Rules 5 to 8 of these Rules. In the instant case the Commissioner had determined the value without exhausting Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h goods to furnish further information including documents and other evidence. In the instant case, it has not been shown that importer was intimated to the effect by the proper officer that they had any doubt about the truth or accuracy of the value declared. Since the condition precedent for invoking Rule 10A has not been fulfilled Rule 10A of the Valuation Rules cannot be invoked in the instant case. 2.8 (a) In this view, the valuation mis-declarations are not established. The Commissioner order to confiscate the said goods under Section 111(m) of the Act. The condition precedent for confiscating the said goods under the Act has not and/or cannot be said to have been satisfied, for the reasons aforesaid as arrived of no misdeclaration of description classification claim or value. The redemption fine of Rs. 25 lakhs imposed by the said order is without any basis, unreasonable, arbitrary and perverse. No particulars, material or basis has been disclosed, in the order, as to how the redemption fine of Rs. 25 lakhs has been arrived at and whether the settled principles/procedure for determination of redemption fine has been followed. The said fine is not called for and is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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