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TMI Blog2013 (8) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... ps, spot lights and the same has to be accepted and for the same reasons – the question of confiscation of the goods u/s 111(d) has to be decided only after giving a clear finding as to whether the goods imported were in pre-packaged form so as to attract the provisions of Note 5 (e) of General Note of the Foreign Trade Policy – decided in favour of assessee - C/132, 133 and 134 of 2008-DB - Final Order No.56521-56523/2013 - Dated:- 6-6-2013 - Archana Wadhwa And Rakesh Kumar, JJ. For the Appellant : Shri Mayank Garg, Adv. For the Respondent : Shri N Pathak, DR. PER : Rakesh Kumar The facts leading to these appeals are, in brief, as under:- 1.1 The appellants firm S.R. Lights imported two containers declared to be containing lighting fixtures, chandeliers, wall lamps, ceiling lamps, table lamps and floor lamps at ICD Agra and filed two bills of entry No.15/06 dated 6.2.2006 and 16/06 dated 6.2.2006 for their clearance. Imports had been made from M/s. Shenzhen Dhan Shi Industry Development Co. Ltd., China. Before examination of the goods by the customs, the officers of Directorate General of Intelligence Unit initiated inquiry and conducted 100% examination of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty under Section 112 of the Customs Act, on the importer, M/s. S.R. Lights; and (d) imposition of penalty under Section 112 of the Customs Act, 1962 on Shri Amresh Kumar Gupta and Shri Anil Kumar Gupta, Partner of M/s. S.R. Lights. 1.2 The show cause notice was adjudicated by the Joint Commissioner vide order-in-original No.5/JC/Customs/Adj/2007-08 dated 26.06.2007 by which the allegations as made in the show cause notice were upheld and the value of the imported consignments was enhanced to the level as proposed in the show cause notice. The imported goods were also ordered to be confiscated under Section 111(d) and (m) of the Customs Act, 1962. But since the goods had been released provisionally pending the adjudication of the matter, redemption fine in lieu of confiscation was demanded in terms of the provisions of Section 125 of the Customs Act, 1962. Besides this, penalty was imposed on the appellant firm, M/s. S.R. Lights as well as on their partners, Shri Amresh Kumar Gupta and Shri Anil Kumar Gupta under Section 112 of the Customs Act, 1962. On appeal being filed by all the three appellants before the Commissioner (Appeals), the same were dismissed vide order-in-appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven in the impugned order as to how the provisions of Exim Policy have been contravened and as such the goods are not liable for confiscation under Section 111(d) and that in view of the above submissions, the impugned order is not sustainable. 5. Shri Nagesh Pathak, ld. Departmental Representative, defended the impugned order by reiterating the findings of the Commissioner (Appeals) and emphasized that in respect of certain items i.e. items declared as "wall lamps", "floor lamps", and "table lamps", there was mis-declaration with regard to description inasmuch as these items were found to be wall clock with LED, table lamps with CFL and humidifiers respectively, that when there is mis-declaration of description, the mis-declaration of value is implied, that when value as well as description of these three items had been mis-declared, the value of the other items also become suspect, that since price of the contemporaneous import of identical goods or similar goods was not available, Rule 7 of the Valuation Rules based on the domestic market wholesale price of the identical or similar goods imported by other importers has been correctly applied, that the goods imported are pre-p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilar goods" or "identical goods" imported and whether the prices are for sale in greatest aggregate quantity. It is also doubtful as to whether M/s. ORMA Lites is an importer, as Proprietor of M/s.ORMA Lites in course of his cross examination in course of adjudication proceedings of another case of import of similar goods from China has stated that he has not imported such goods and has even denied to have signed the quotation. In view of this, quotation of M/s. ORMA Lites cannot be the basis for applying Rule 7 and, therefore, the value has to be determined either by applying Rule 7 A or by best judgement method under Rule 8 for which this matter would have to be remanded to the original adjudicating authority. 8. As regards the other items in respect of which there is no mis-declaration of description, we find that there is absolutely no basis for rejecting the declared transaction value just on the basis of the price of glass, plastic and metals in India and adopting some assumed value addition. There is no evidence of contemporaneous import of identical goods or similar goods at higher prices. There is also no allegation that conditions for accepting declared value as mention ..... X X X X Extracts X X X X X X X X Extracts X X X X
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