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TMI Blog2017 (5) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... remand the matter to the Original Adjudicating Authority for fresh decision - matter on remand. As regards the confiscation of the 30 declared items, in terms of Section 119 of the Customs Act, we find that there is nothing on record to show that the same were used for concealing the undeclared goods. Mere presence of the declared and undeclared items in the import consignment would not ipso-facto lead to the conclusion that declared items were brought only with the intention of concealing the undeclared items. As such, we hold that their confiscation is not called for, the same is accordingly set-aside. As regards the penalty on Shri Pankaj Gupta, Partner of the firm, we find that the partnership firm has already been held liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lls etc. There is no dispute about the description of the said declared items. However, the Revenue enhanced the value of the same based upon the NIDB data. Apart from the said items, the consignment was also found to contain 40 boxes of Glass Chattons, which were not declared by the appellant. 3. The matter was taken up for adjudication. The lower authority confirmed the demand of duty in respect of 30 declared items by enhancing the assessable value based upon NIDB Data. As regards Glass Chatons, the value was again adopted from the NIDB Data and the demand was confirmed to the extent of ₹ 46.63 Lakh along with confiscation of the same and imposition of penalty. 4. Arguing in respect of first 30 items, ld. Advocate submits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide-lined the same and has not given any finding in respect of the said classification dispute. Ld. Advocate further submits that items 1 to 30 have been confiscated under the provisions of Section 119 of the Customs Act, on the ground that the same have been used to conceal the undeclared Glass Chatons. He refers to the Tribunal decision in the case of Kantilal Daga Anandmal Sethia vs. CC, INB, Patna, wherein it was held that the concealment and covering are two different expressions and unless there is evidence to show that the undeclared goods were concealed with the declared goods, mere coverage would not call for confiscation under Section 119 of the Act. Similarly, in respect of the imposition of penalties on the partner of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 declared items by enhancing their value on NIDB Data basis cannot be upheld. For the said reasons, then confiscation can also not be upheld. We will examine the confiscation of the said items, in terms of section 119 later on. 9. As regards Glass Chatons, it stands fairly admitted before us that the same were not declared by the importer. As such, we hold that such undeclared items are liable to confiscation and the importer is also liable to penalty. However, the appellants have contested the classification of the same and have relied upon the Tribunal decision in the case of Art Beads Pvt. Limited (supra) . Though this decision was placed before the Commissioner, he has not referred to the same and has not even distinguished it on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 007 (213) ELT 641 (Bom.). Accordingly, the penalty imposed on Shri Pankaj Gupta is set-aside. 12. As regards penalty on Shri Rohit Saran, we find that the same stands imposed only for alleged violation of CHA Regulations and not for the contravention of any of the provision of Customs Act. The Hon'ble Madras High Court in the case of Commissioner of Customs (Exports), Chennai vs. I. Sahaya Efin Prabhu 2015 (320) ELT 264 (Mad.) has upheld the Tribunal decision wherein, in the absence of any positive role played by CHA for abetment to the exporter in that case, penalty imposition for violation of CHA Regulations was set-aside. By following the said decision, we set-aside the penalty imposed on Shri Rohit Saran and allow his appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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