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TMI Blog2014 (5) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons in the impugned order. No merit is found in the contention of the Revenue that the reduction of fine and penalty is incorrect, in absence of cogent evidences rebutting the contention of the letter dated 15.03.2010 issued by the over-seas supplier stating clearly that the goods were wrongly consigned to the importer in India - Simultaneously, it also cannot be denied by the importer-assessee that there occurred a mis-declaration and mis-classification of the good imported into India, which they have readily accepted on the basis of letter dt.12.03.2010, waived the issuance of Show Cause Notice and participated in the adjudication proceeding - Relying upon Chemical Suppliers Versus COLLECTOR OF CUSTOMS [1992 (9) TMI 111 - SUPREME COURT OF INDIA] - There is violation of Sec. 111(m) of the Customs Act,1962, hence the goods are liable for confiscation and consequently, imposition of penalty is also warranted u/s 112 - This Court do not agree with the contention of counsel for importer that confiscation and penalty cannot be visited as the violation is held to be technical in nature. Penalty and fine imposed by Commissioner(A) is reasonable - Also, there is no force in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Bill of Entry No.527006 on 05.03.2010 seeking clearance of imported goods declaring the same as embellishment for garments(undyed) under chapter sub-heading 58109900 of Customs Tariff Act, 1975 attracting duty @10%. The total quantity declared was 8509.70 kgs. On the basis of an intelligence, the Customs authorities had conducted examination of the said imported consignment in the presence of the importer. It was found that around 5332.800kgs., out of the said total imported consignment, were lace without visible background classifiable under CSH 58101000 attracting higher rate of duty. Further, from the said quantity of 5332.800 kgs., around 309 kgs. were also found to have comprised of coloured lace without visible background. The authorized representative of the importer-assessee has admitted to the said joint verification and agreed to discharge appropriate duty and also waived issuance of show cause notice. Consequently, the adjudicating authority after according personal hearing to the importer-assessee, ordered confiscation of 5232.80 kgs. of lace without visible background valued at Rs.12,34,022.19 (CIF) under section 111(m) of the Customs Act, 1962 with an option ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orter-assessee. It is his submission that on the contrary such letter is an after-thought and procured by the importer soon after detection of the said quantity of mis-declared goods by the Customs department. He submits that the Ld. Commissioner(Appeals) has erred by not taking into cognizance of the fact that the importer themselves have admitted that there was wrong dispatch of the consignment and there was mis-declaration and mis-classification of the goods. Therefore, reduction in fine and penalty by the Ld. Commissioner(Appeals) is erroneous and liable to be set aside and the fine and penalty imposed by the adjudicating authority be restored. The Ld. A.R. has referred to the judgement of Hon ble Supreme Court in the case of Pine Chemical Suppliers vs. Collector of Customs - 1993 (67) E.L.T. 25(S.C.) in support of his argument that for confiscation of goods under Sec.111(m) and imposition of penalty under Sec.112 mens rea is not the relevant factor. 6. Per contra, Shri Ramesh Chowdhury, Ld.Advocate who appeared for the importer along with Shri B.N. Pal, Ld. Advocate submitted that even though the importer have challenged the Ld. Commissioner(Appeals)s order on various grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lassification, however made a sincere attempt to argue that the said letter dt.12.03.2010 issued by the overseas supplied is an after thought and procured to cover up the mis-declaration but could not produce any evidence to show the positive involvement of the importer in the importation of the 5332.800 kgs. of lace without visible back ground instead of embellishment for garments(undyed) as declared in the Bill of Entry. We find that while reducing the penalty and fine, the Ld. Commissioner(Appeals) has recorded reasons in the impugned order. Analyzing the said observation, in the back drop of the Revenue s claim, we do not find merit in the contention of the Revenue that the reduction of fine and penalty is incorrect, in absence of cogent evidences rebutting the contention of the letter dated 15.03.2010 issued by the over-seas supplier stating clearly that the goods were wrongly consigned to the importer in India. Simultaneously, it also cannot be denied by the importer-assessee that there occurred a mis-declaration and mis-classification of the good imported into India, which they have readily accepted on the basis of letter dt.12.03.2010, waived the issuance of Show Cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visited as the violation is held to be technical in nature. 9. In view of the findings recorded as in above, in our opinion, the penalty and fine imposed by the Ld. Commissioner(Appeals), is reasonable and accordingly Revenues contention for enhancement of the penalty and fine is devoid of merit. Also, equally there is no force in the contention of the importer M/s.A.K. Enterprises that the goods are not liable for confiscation and consequently no penalty is imposable. In the result the Order of the Ld. Commissioner(Appeals) is upheld to the extent of confirmation of fine and penalty and the Appeals filed by the Revenue as well as the importer M/s A.K. Enterprises, on this issue, are rejected. We have not considered the other issues decided in the impugned Order as the same are not pressed before us. Cross Objection filed by the importer-assessee which nothing but a written submission against the Appeal of the Revenue, is also disposed of. At this stage the Ld. Advocate Shri Chowdhury for the importer submits that the bank guarantee submitted with the department is pending. Since we have disposed of the Appeals filed by the Revenue as well as the importer-assessee, consequen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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