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TMI Blog2012 (4) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... would always be found - redemption fine in lieu of confiscation on the ground of mis-declaration of classification also cannot be upheld and no penalty under Customs Act - remand the matter to the original adjudicating authority who shall decide the duty payable on 3142 tyres - once it has been held that the value arrived at on the basis of opinion of the re-traders, cannot be accepted and the valuation has not been done in accordance with the valuation rules, the Department cannot proceed to revise the value - Commissioner is directed to re-consider the issue - C/196/2011 - - - Dated:- 7-3-2012 - Mr. M.V. Ravindran, Mr. B.S.V. Murthy, JJ. Shri P. Gupta, Adv.: for Assessee. Shri R. Srova, A.R.: for the Revenue. Per: MR. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctly or not. It was also submitted by the appellant that they were simply selling tyres. It is for the customer to decide whether the same requires re-treading before use or not. Therefore, on facts, we find this case is not exactly comparable with other cases cited before us. In M/s Galaxy Pet Packaging Syntex's case - 2009 (233) EL T 358 (Tri-Ahmd.), the appeal was allowed on the ground that the expert opinion given by MI s MRF Ltd. alone cannot be the basis. In that case, L.D. Engineering College, Ahmedabad had given the opinion that the tyres did not have any transportation life left. In that case, the Commissioner had taken a view that the tyres in question were not capable of use for transportation and they cannot be said to be classi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admittedly they cannot be used directly and therefore they cannot be classified under heading claimed by the department. 7. Next contention was regarding value enhancement of value by the Commissioner. We find ourselves in agreement with the contention of the learned advocate that enhancement of the value without giving details of contemporaneous import from the same country and the same size etc. cannot be upheld. In this case, valuation and enhancement has been done on the basis of information given by the expert re-treaders. This is totally against the procedure contemplated under the Customs Act. The transaction value was rejected on the ground that experts gave their opinion that the vehicles can be used directly. This cannot be th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, a very nominal penalty and fine, if at all is required to be imposed, may be imposed. Accordingly, we set aside the impugned order and remand the matter to the original adjudicating authority who shall decide the duty payable on 3142 tyres. Further, exact number of tyres which are found to be usable as per panchnama is required to be verified by the Commissioner since our observations are based on the submissions made during the hearing. 10. Accordingly, we remand the matter to the Commissioner to verify the correct number of usable tyres, determine the duty liability thereon provisions of foreign trade policy. " 3. The appellants are in appeal against the order passed after receipt of Tribunal order by the ld.Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n followed and in the absence of any other option for determination of value, the only option available would be to determine the value pro-rata taking the value declared for consignment. This would be the meaning of the direction given in the remand order since the enhancement was set aside. Further, even if the enhanced value is considered, the redemption fine of Rs.2.50 lakhs and penalty of Rs.1.50 lakhs having regard to the total value of the usable tyres, does not look nominal and in the order of the Tribunal, it was indicated that fine and penalty have to be nominal. 6. In view of the discussions above, even though the matter was heard at length, the issue lies in a narrow compass and therefore instead of allowing the Stay Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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