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TMI Blog2010 (6) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... /2002 - A/195/2010-WZB/C-II/CSTB - Dated:- 15-6-2010 - S/Shri P.G. Chacko, Member (J) and S.K. Gaule, Member (T) REPRESENTED BY : Dr. T. Tiju, SDR, for the Appellant. Shri N.D. George, Advocate, for the Respondent. [Order per : P.G. Chacko, Member (J)]. - The respondent in this appeal had imported in April, 2001 what they declared as "Synthetic Pile Fabrics" in the relevant Bill of Entry which was filed through their CHA on 11-4-2001. The relevant airway bill had also described the goods in the same way. The goods were classified by the importer under CTH 6001.92. The consignment consisting of 4716.37 metres of fabric valued at Rs. 2,00,584/- was assessed to duty on the basis of the importer's declaration and, upon payment of such duty by the assessee, out-of-charge was allowed by the assessing authority under Section 47 of the Customs Act. The goods were accordingly cleared for home consumption. Subsequently, however, the SIIB doubted the veracity of the importer's declarations. They were of the view that the goods were actually woven fabric of weft pile classifiable under CTH 5801.33 as 'synthetic woven weft pile fabrics'. Samples were drawn and got te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) and the latter passed a common order in favour of the said parties. 2. In the present appeal filed by the department, only M/s. R.K. Impex, Mumbai, were cited as respondents in the cause title of the Memo of Appeal, though, elsewhere in the Memo of Appeal, the names and addresses of the other two parties were also mentioned. The learned counsel for M/s. R.K. Impex, Mumbai has raised a preliminary objection in this connection. However, he has also pointed out that he has entered appearance for all the three parties. This factual situation is, in our view, enough for the learned SDR to get over the objection raised by the counsel. In other words, we would consider this appeal as an appeal of the Revenue filed as against all the three parties. 3. In this appeal, four major grounds have been raised by the department. Firstly, it is contended that the view taken by the learned Commissioner (Appeals) that, once cut-of-charge order was given under Section 47 of the Customs Act, it was not open to the department to vary that order otherwise than by taking recourse to Section 129D of the Customs Act is not correct. In this connection, the appellant has relied on Union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by the assessing authority. The learned Commissioner (Appeals) thought that any such demand of duty could be raised only by recourse to the remedy available under Section 129D of the Act. The decision of the Hon'ble Supreme Court in Jain Shudh Vanaspati (supra) should dispel the apprehensions of the learned Commissioner (Appeals). We are not impressed with the way the learned counsel has sought to distinguish Jain Shudh Vanaspati case. He has submitted that, in that case, the importer had fraudulently camouflaged the stainless steel containers of the imported oil by painting them so as to make the containers look like mild steel containers. The learned counsel has argued that the ruling of the apex court will be applicable only to a case involving fraud. We have perused the judgment of the Apex Court and we have found the court's ruling to be clear on the applicability of Section 124 to goods allowed to be cleared out-of-charge under Section 47. Their Lordship held that a clearance order under Section 47 obtained by fraudulent means could not debar the issuance of a show-cause notice for confiscation of goods under Section 124. This ruling was rendered in the context of examining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessee. In his statement, the proprietor of R.K. Impex (assessee) admitted undervaluation also. It was in these circumstances, the department invoked Section 28(1) of the Act in preference to Section 129D of the Act. The choice was lawfully made, which is justified by the apex court's ruling in Jain Shudh Vanaspati case. The contra view taken by the Commissioner (Appeals) runs counter to a basic tenet of law laid down by the apex court. 7. Yet another idea misconceived by the lower appellate authority is that a confessional statement made by the importer under Section 108 of the Customs Act cannot be used against him in the absence of any corroboration. Here is an importer who, under Section 108 of the Act, admitted undervaluation of the goods and came forward to pay the differential amount of duty along with fine and penalty. The statements were never retracted. Nothing contained in the statements given under Section 108 of the Act by their CHA or the CHA's employee was, in any way, in conflict with the fact admitted by the importer. The classification proposed by the department was also readily accepted by the importer. Having accepted the classification and the enhance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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