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TMI Blog2018 (5) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... said Public Notice, he did not have authority to give opinion on metals - the original authority has not discarded the transaction value as required under Section 14 of the Customs Act, 1962 - the original authority has not exercised his power to adjudicate the same but simply adopted the opinion suggested by the said chartered engineer who did not have authority as empanelled chartered engineer relating to metals - the opinion of the chartered engineer, who is not a metallurgical engineer, should not be relied upon and value can not be enhanced. In view of the majority order, both the appeals are allowed with consequential relief. - Appeal No. C/52109-52110/2014-Cus (DB) - INTERIM ORDER NO. 45-46/2017 FINAL ORDER NO. 62292-62293/2018 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the appellants on 25.4.2011 alleging misdeclaration of the goods as also undervaluation of the same and proposed enhancement of value to USD 600 per MT. 5. The said show cause notice culminated into an order passed by the original adjudicating authority, upholding the charge of misdeclaraton, rejecting declared value and confiscating the goods with an option to the appellant to redeem the same on payment of redemption fine of ₹ 4.50 lakh. Differential duty of ₹ 1,64,903/- was confirmed and penalty of ₹ 4.50 lakh was imposed upon the importing firm along with imposition of penalty of ₹ 1 lakh upon Shri K.K.Garg, Director of the company. The said order was appealed against by the appellants before the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Shri Soni as explained during the cross examination cannot be faulted upon. Shri Soni had explained that in order to examine the goods, different samples from the de-stuffed containers were drawn randomly from different places and were analysed with the help of X-R-F Analyzer and based on the reading of the samples drawn and tested and visual examination by experience, approximately percentage of the material was worked out. We find no merit in the above contention of the Revenue. Firstly, Shri Soni, who was admittedly not metrological engineer, cannot be held to be a expert. Further, in any case, it seems to be a personal opinion by Shri Soni which is not based upon the documentary evidence. However, in the waste and scrap, metallic mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Managing Director of the firm Shri. K. K. Garg had admitted that the goods were indeed turning scrap of mix grade but he did not agree to the value suggested by the department at USD 600 per MT. Hence, the goods were mis-declared in their description. The appellants have sought to challenge the opinion given by the Chartered Engineer. I find that the Chartered Engineer did proper analysis with the help of X-R-F analyzer, so as to ascertain the exact nature of imported goods. The appellants were allowed cross examination of the Chartered Enigneer, which they duly conducted. I find that in the cross examination the chartered Engineer had satisfactorily replied to the questions raised by the appellant and given sufficient justifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er can assess the scrap. As the appellants have mis-declared the goods rendering them liable to confiscation under Section 111(m) of Custom Act, penalty on the appellant No. 1 is correctly imposed. I also uphold the penalty on the M.D. Sh. K.K. Garg, appellant No. 2, as he was equally responsible for mis-declaration of undervaluation of impugned goods. 13. In view of the above, I find no infirmity in the order of Ld. Commissioner (A) and the same is upheld. Both the appeals are dismissed. (Devender Singh) Member (Technical) As there are contrary views and difference of opinion between the Members, therefore, the matter be placed before the Hon ble President to refer the matter to the third member to resolve the following issues. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered engineer decided its description as turning scrap mix grade . The said chartered engineer was not competent to examine the metals because he was Mechanical Engineer. The original authority accepted whatever was decided by the chartered Engineer in respect of description and the value and the original authority has not discarded the transaction value as required under section 14 of the Customs Act, 1962. 27. Having considered the rival contentions and on perusal of the record, I find that the said chartered engineer was empanelled for valuation of second hand machinery and he was mechanical engineer and as per the said Public Notice, he did not have authority to give opinion on metals. I also find that the original authority has not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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