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TMI Blog2015 (2) TMI 1083X X X X Extracts X X X X X X X X Extracts X X X X ..... s in appeal against the Order-in-Appeal No. 137/MUM III / 2010 dt. 20.12.2010 passed by the Commissioner of Customs (Appeals) Mumbai. 2. The brief facts are that appellant on behalf of M/s. Precision Enterprises filed form-V Bill of Entry for the import of second hand SO2 Analyser for repairs on 13.11.2008, for clearance of the same through the appellant DHL Express (India) Pvt. Ltd. It is allege ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gent of the importer and hence they are not liable for any penalty. It was further contended that there is no case for mis-declaration as it is seen from the invoice of the exporter and also from the invoice of the appellant courier, that the goods are imported for repair and for re-import in the country of export. It is further not in dispute that the M/s. Precision Enterprises is engaged in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Courier Bills of Entry (Form-V) not declaring the goods as old/used/second hand, and importer having no IEC. The Courier Company had deliberately ignored this fact & attempted to clear the goods by declaring the said goods through the Courier Bills of Entry. In view of this, the courier company has failed to exercise due diligence to ascertain the correctness of condition of the goods & thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a case of mis-declaration and suppression is made out against the appellant courier agency. Further SO2 Analyser is a capital goods under para 9.12 of FTP, which includes 'instrument for testing, research, quality on pollution control'. Thus the appeal is allowed. Courier agency is entitled to refund of pre-deposit made during the investigation or pending of proceedings. (Pronounced & Dicta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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