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TMI Blog2017 (5) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... s per the invoice/order/ packing list - confiscation and penalty set aside. The goods on physical verification found different as per declaration made by the appellant and the value has been enhanced on the basis of market survey. As no market survey report has been placed on record, the value adopted by the adjudicating authority can be said to the true value of the goods. Matter remanded back to the adjudicating authority to decide the issue afresh after providing the copy of market survey to the appellant defend their case - appeal allowed by way of remand. - C/52849/2014, C/52905/2014 - C/A/53186-53187/2017-CU[DB] - Dated:- 9-5-2017 - Mr. Ashok Jindal, Member (Judicial) And Mr. V. Padmanabhan, Member (Technical) Shri. Mani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, girls/women tops, jeans, t-shirts (for ladies as well as gents) jackets, wind cheaters, rain coats, leggies, night dress, skirts and silicon pads, printed fabrics of polyester staple fibres, gents t-shirts of Tommy Hilfiger brand, gents footwear, ladies bags/purses((branded-fake/counterfeit goods), silicon pads, bra, girls/women panties/nipple respectively. During the course of examination, the following items were not found as declared by the importer namely bra-hooks, caps, gents footwear, gents sleepers, gents shirts, gents t-shirts, girls/ladies tops, girls/women panties, girls shorts, jackets/wind cheaters, jeans, girls T-shirts, ladies bags/purse, ladies ensembles, ladies dress, nipple pads, panty hose, plastic washing pouch, rain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t actual but due to the revenue treating the same as different goods. Some of the undeclared and excess goods are covered by the short found goods. 5. He further submitted that some of those goods have been confused with short found goods. The bra hooks and plastic washing pouches are supplied as complementary for washing bra with the main item bra. The T-shirts, Girls Knitted Top, Girls T Shirts, Ladies Top (Knotted) has been included to be undeclared items. The assessing officers appear to have confused with these items. All these items are in-fact baby tops. The ladies bags alleged to be mis-declared are covered by the description of goods Bag Assorted . Even there is shortage of Bags Assorted . The ladies dress, ladies ensemble all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. In the absence of quality of the goods in the market inquiry report, the same cannot be compared with the imported goods. Moreover, in the absence of origin of the imported goods and the goods as per the said to be market survey, no comparison could be made, therefore, the market survey value is without any evidence. He relied on the decision of M/s JD Orgachem Ltd. (2008 (226) ELT 9 (SC). He also relied on the decisions of M/s Siddachalam Exports Pvt. Ltd. 2011 (267) ELT 3 (SC). He further submitted that the redemption fine cannot be imposed on the appellant, as the goods were never placed under seizure and goods were not cleared by the customs without execution of any bond. To support his contention, he relied on the decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant submitted the invoices of a trader and not from a manufacturer, therefore, the declared value by the importer do not represent the correct transaction value. It is further submission that the appellant failed to submit any reliable documents on the basis of which correct transaction value can be ascertained. More over some undeclared goods have also been found for whom there is no declared transaction value. Accordingly, the value was determined on the basis of market inquiry. The appellant is liable to pay differential duty. In that circumstances, the impugned orders is to be upheld in the light of the decision of Hon ble Apex Court in the case of Maharashtra State Board of Secondary and Higher Education Vs. K.S. Gandhi Ors. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d liable for confiscation and consequently, the penalty is not imposable on the appellant. 9. We further find that the goods on physical verification found different as per declaration made by the appellant and the value has been enhanced on the basis of market survey, as no market survey report has been placed on record. In that circumstances, the value adopted by the adjudicating authority can be said to the true value of the goods. It is brought on record by the adjudicating authority, some market survey has been conducted. In that circumstances, report of market survey is required to provide to the appellant in the interest of justice for adjudication. In that circumstances, we set aside the impugned orders and remand matter back to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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