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TMI Blog2013 (10) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... s E data ground display tube colour with a phosphor dot screen pitch screen under the claim of classification under heading 8540 4000. The goods were examined by an officer below the rank of Deputy Commissioner who observed as under :- " As directed, O/E 100% in presence of CHA and found to contain CRT picture tubes of 4 dimensions, said to be in stock lot as per invoice, PL and BL attached. The goods are bulky, packed in the pallets and are unbranded . It cannot be ascertained "whether they are defective or not". Further visually they appeared to be old but unused. ...... to see the goods." 2. Thereafter the goods were examined by the Deputy Commissioner who remarked as under :- "Goods are new and prime they are not stock lot. Valuation may be carried out accordingly." 3. Based upon the above observation of the Deputy Commissioner, Revenue entertained a view that description of the goods in the invoice is not correct as also the classification of same under heading 8540 4000 is not correct. The goods are properly classifiable under heading 8540 0090 and chargeable to customs duty at the rate of 12.5%. Accordingly, the matter was taken up for adjudication by the Addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the goods, enhancement of the price of goods was not justified. 6. As regards the classification, he submits that the goods were declared correctly in the Bill of entry and the claim under wrong classification cannot be a reason for imposition of penalty. Accordingly, he prays for setting aside the penalty. 7. After hearing the learned DR appearing for the Revenue and after going through the impugned order, we find that admittedly first examination report conducted on 9.1.06 is to effect that visually the goods appeared to be old but unused. However, the second report of the Deputy Commissioner is to the effect that goods are new and they are not 'stock lot'. We find that Deputy Commissioner examined the goods visually. Except the said report of the Deputy Commissioner, every other documents i.e. the invoices raised by the supplier, packing list as also the BL describing the goods as stock lot. From the facts on record, we find that goods are of various sizes and of various numbers. The invoices raised by the supplier also reflects upon the value of each and every item. Revenue has not adduced any evidence to show that value of the said goods as reflected in the suppliers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, we duly agree with the learned advocate that such wrong classification claim, when the description of the goods stand correctly given by the assessee cannot be a reason for alleging mis -declaration of the goods so as to invite penal action against them. 12. As we have already observed that only relief the assessee is seeking before us is in respect of imposition of penalty of Rs . 1.50 lakhs, we set aside the same and allow the appeal to the above extent. (Pronounced in the open court on ..............) Archana Wadhwa , Member (J) Manmohan Singh, Member (T) I record separate order. PER : Manmohan Singh 13. I have gone thorough draft order recorded by learned Member (Judicial). I have also examined the various aspects and I am not in agreement with the decision and finding recorded. I therefore record separate order as under :- 14. Facts recorded in para 5 of the order proposed by learned judicial member, itself speak that there was realisation of higher value of misdeclared goods by customs through auction, Rs.10 lakh realised by auction was nearly two and a half times of the declared value. This speaks for itself that declared value of Rs.4.18 lakh was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck lot and also misdeclared , the value declared by the appellant became redundant as it is based on misdeclared facts. Appellant's contention for non acceptance of value also becomes unsustainable. Goods not imported making proper declaration that becomes smuggled goods. 19. Even on the point of classification, there is clear misdeclaration . Appellants has declared it CRT falling under chapter heading 8540 4000 attracting nil rate of actually. But these were rightly classifiable under chapter heading 8540 0090 attracting duty of 12.5% Assessment order no. 42/2006 dated 07.12.2006 has truly described the nature, uses and various specifications of Data/Operator display tube colour with a phosphor dot screen pitch smaller then 0.4 mm. No catalogue was produced by the party to verify above characteristics . Also no description was mentioned in Import invoice. Goods' description was misdeclared to claim wrong classification under 85404000 since the basic customs duty under this CTH was nil by tariff. Goods were actually classifiable under CTH 85401190 and Basic Customs duty chargeable was @ 12.5% Importer accepted during the personal hearing on 24.01.2006 before Commissioner, that C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of deliberate misdeclaration and undervaluation with intent to evade customs duty. Penalty was imposed as the provisions of Section 114 which warrants such imposition. That section reads as under: "SECTION 114. Penalty for attempt to goods improperly, etc. - Any person who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 113, or abets the doing or omission of such an act, shall be liable, - (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty not exceeding three times the value of the goods as declared by the exporter or the value as determined under this Act, whichever is the greater; (ii) in the case of dutiable goods, other than prohibited goods, to a penalty not exceeding the duty sought to be evaded or five thousand rupees, whichever is the greater; (iii) in the case of any other goods, to a penalty not exceeding the value of the goods, as declared by the exporter or the value as determined under this Act, whichever is the greater." 25. In view of above, ..... 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