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TMI Blog2014 (2) TMI 974X X X X Extracts X X X X X X X X Extracts X X X X ..... ally colour picture tubes meant for colour television, there was absolutely no reason for the appellant for mentioning the words "data graphic display tubes colour with phosphor dot Screen pitch smaller than 0.4 mm" in the bill of entry and at the same time, classifying the same under sub-heading 85404000 pertaining to data/graphic display tubes and claiming nil rate of duty on this basis. In the background in which the wrong description had been given, it has to be treated as deliberate. - the description of the goods had been deliberately mis -declared with intent to evade the duty so as to attract the provisions of Section 111(m). - Decided against the assessee. Declaration of valuation - Held that:- The price of the goods in these bills of entry could be adopted for the goods, in question, if and only if, those bills of entry were in respect of import of "identical goods" or "similar goods" within the meaning of these terms as defined in the Customs Valuation Rules, in comparable quantity. Since, the details of the goods covered under these bills of entry have not been disclosed, it is not known as to whether goods imported under these bills of entry were also unbranded and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me were also undervalued. He accordingly, enhanced the value of the goods on the basis of NIDB data. Accordingly, vide his order, he confiscated the goods with an option to the appellant to redeem the same on payment of redemption fine of Rs.3 lakhs and penalty of Rs.1.50 lakhs was also imposed upon the importer without any reference to the section of Customs Act under which such penalty was being imposed. 4. On appeal, Commissioner (Appeals) upheld the said order of adjudicating authority. Hence, the present appeal. 5. Learned advocate Shri V. R. Sethi , appearing for the appellant, submits that the importer has not cleared the goods as the value was arbitrarily enhanced from the declared value of Rs.4.81 lakhs to Rs . 15.88 lakhs. Further, as the appellant was not able to pay the redemption fine of Rs.1.50 lakhs, goods were not cleared and the same were subsequently sold by the Revenue by way of auction at a price of Rs.10 lakhs approx. As such, he submits that inasmuch as goods were not cleared, the confirmation of demand of duty and imposition of redemption fine has become infructous . As regards penalty, he submits that sole basis of arriving at a finding against the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s neither appropriate nor proper. 8. In any case and in any view of the matter, we find that it stand held by various Courts that the charges of under valuation cannot be upheld on the basis of NIDB data. Reference can be made to Tribunal's decision in CCE , Kanpur vs. Asia Pacific Distributors reported as [2012 (286) ELT 720 (Tri-Del)] as confirmed by the Hon'ble Supreme Court. Tribunal in the said case referred to Hon'ble Supreme Court decision in the case of Neha Intercontinental P. Ltd. [2008 (221) ELT A 32 (SC)] and observed that NIDB data cannot be relied upon in the absence of any proof that the imports shown in the NIDB data was of identical or similar goods and of similar quantity. 9. Apart from the fact that NIDB data cannot be held to be an admissible evidence for the purpose of enhancement of value, we note that in the present case, the goods imported by the appellant were unbranded. It does not stand disclosed in the impugned orders that the value picked up from the NIDB data was of unbranded goods or branded goods. In any case, unbranded goods cannot be compared with other branded or unbranded goods, especially when the goods were stock lot goods and there is no o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record with different specification were imported. Burden was on importer to prove that declaration of description and value was truthful. NIAB data was proper basis and reliable showing past imports, which was not challenged by appellant. 15. The appellant when preferred to forgo right to file detailed reply against the SCN , that clearly establishes that appellant was finding a way to escape scrutiny of customs. 16. A customs authority in customs hierchy who was superior to examining authority when found that good were not old and not stock lot but new and distinct, made appropriate adjudication. 17. Regarding non-acceptance of Deputy Commissioner's examination report on the plea that he is not expert is not well founded since he is very senior Govt. Servant under whose supervision and control all examination of imported goods take place. He is also a person who has to ensure that subordinate officers under his charge conduct examination of imported goods in proper way. He is also a person who has to ensure that subordinate officers under his charge perform their duties without mischief or favour . Once Deputy Commissioner in charge of shed has himself examined the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as to value, and classification is found, appropriate duty became payable with other consequences of law. Plea that it was only wrong classification and no misdeclaration is unsustainable. Clear admittance that CRT actually were meant for colour TVs is clearly indicative. Large Revenue would have been lost but for proper examination. 21. It has to be kept in mind that these goods were to be cleared through Risk management System ( RMS ) where no examination was required. But for the stock lot angle, these would not have been examined and goods would have been cleared without payment of duty. Intent to evade duty is proved when scrutiny check was done by Dy. Commissioner . 22. Even on valuation issue where it is proposed that NIDB data cannot be relied upon without declaring the brand name, I am not agreeable to the finding. Once as stated above, misdeclaration is proved and duty ramification are there, price declared becomes unacceptable. Goods were branded and not unbranded. Since those were declared old and stock lot and classification is misdeclared , contemporaneous import data becomes relevant and decisive. Preponderance of probability was in favour of customs to deter u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 114 of Customs Act, 1962 as held by Hon'ble Member (Technical) or penalty is to be set aside as held by Member (Judicial). Manmohan Singh, Member and Archana Wadhwa , Difference of Opinion Per: Rakesh Kumar: 26. The appellant filed a bill of entry No. 545214 dated 26/10/06 for clearance of a consignment of goods declared as "stock lot of CRT picture tubes of 14" and 20" [data graphic display tubes, colour with phosphor dot screen pitch smaller than 0.4 mm] and 21" and 29" CRT picture tubes (stock lot)", claiming classification under subheading 85404000, which covers to "data or graphic display tubes, colour with a phosphor dot Screen pitch smaller than 0.4mm and for which the tariff rate of basic customs duty is nil. The goods were accordingly sought to be cleared at nil rate of duty. As per the facts narrated in the order-in-original passed by the Additional Commissioner, the bill of entry was cleared online under RMS under "no assessment no examination order" and also without any compulsory compliance requirement. Since the shed appraiser on perusal of the import invoice could not verify as to whether the goods were data/graphic colour display tubes with phosphor do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been filed. Since, the importer did not redeem the goods on payment of the duty on the loaded value, redemption fine and penalty, the goods were auctioned by the customs in about Rs.10 ,00,000 /-. 27. This matter was heard by Division Bench on 19/06/13. In course of hearing before the Tribunal, the appellant's counsel while pleading that goods were stock lot and there was no mis -declaration of description and, as such, there was no justification for confiscation of the goods and imposition of the penalty, also mentioned that since the appellant was not able to clear the goods on payment of duty on the enhanced value, redemption fine and penalty, the same have been sold by the Revenue by the way of auction at price of about Rs.10 ,00,000 /- and, hence, the confirmation of duty demand and imposition of penalty has become infructuous. He, however, pleaded for setting aside of the penalty. Member (Judicial) in her order dated 02/07/13 holding that there is no mis -declaration of description or value and hence there is no justification for imposition of penalty, set aside the imposition of penalty of Rs.1 ,50,000 /- and allowed the appeal to this extent. Member (Technical), howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- CIF on the basis of four bills of entry mentioned in NIDB data pertaining to import of colour picture tubes during October 2006, that copies of these bill of entry had not been made available to the appellant, that it is not known as to whether under these bills of entry, the colour picture tubes of some well known brand had been imported or the picture tubes were unbranded picture tubes of Singapore origin, that declared value of the goods cannot be rejected unless there is evidence on record in form of bill of entry pertaining to contemporaneous imports of identical goods or similar goods, within the meaning of these term as defined in the Customs Valuation Rules, 1988, in comparable quantity, and such evidence is disclosed to the importer, that in this regard he relies upon the judgment of Tribunal in the case of CCE , Kanpur vs. Asia Pacific Distributors reported in 2012 (286) E.L.T . 720 (Tri. - Del.) , wherein it was held that without giving an opportunity to the importer to argue as to how the imported goods were not comparable, NIDB data cannot be used to enhance the declared value of any imported goods, that same view had been taken by the Tribunal in the case of Neha I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e considered the submissions from both the sides and perused the records. 32. The only point to be decided in this case is as to whether there is mis -declaration of description as well as mis -declaration of value rendering the goods imported liable for confiscation under Section 111(m) of Customs Act, 1962 so as to attract penalty under Section 112(a). Though the order of learned Member (Technical) mentions imposition of penalty under section 114, this section is not attracted in this case, on section 114 is for imposition of penalty for attempt to export goods improperly, while this is a case of improperly imported goods to which the provisions of section 111 and 112 apply. 33. Coming to the question as to whether there is mis -declaration of description, the description of the goods as mentioned in the bill of entry is "stock lot of CRT picture tubes [data graphic display tubes colour with phosphor dot screen pitch smaller than 0.4 mm]. The description of the goods in the invoices which are required to be presented by the importer on demand was, however, "stock lot of colour picture tubes". While the colour picture tubes for use in colour television are classifiable under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not moving are no longer in demand or have become obsolete. Therefore, when the importer's claim that the goods are stock lot is disputed by the department, some enquiries in this regard have to be conducted and just on the basis of the condition of the goods as being unused, it cannot be said that the same are not stock lot, as the new and totally unused goods can also be sold as stock lot. It is also seen that while the department seeks to reject the declared value of the unbranded picture tubes, in question, on the basis of 4 bills of entry of October 2006, the information about which was obtained from NIDB data, neither the details of these bills of entry have been given nor the copy of the same was made available to the appellant. The price of the goods in these bills of entry could be adopted for the goods, in question, if and only if, those bills of entry were in respect of import of "identical goods" or "similar goods" within the meaning of these terms as defined in the Customs Valuation Rules, in comparable quantity. Since, the details of the goods covered under these bills of entry have not been disclosed, it is not known as to whether goods imported under these bills of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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