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TMI Blog2018 (11) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... the charge of undervaluation should be proved by the Department on the basis of strong documentary evidence which is absent in the instant case. Rejection of value of goods earlier re-imported and cleared - Held that:- The goods earlier imported by the appellant cannot be taken for the determination of the value, in view of the findings recorded with respect to the current import under dispute. Accordingly, it was held that the demand of differential duty of ₹ 12,00,875/- is not sustainable. Appeal dismissed - decided against Revenue. - APPEAL No. C/56609/2013-CU[DB] - C/A/72455/2018-CU[DB] - Dated:- 20-2-2018 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri Mohammad Altaf, Assistant Commissioner (AR) for Appellant Shri Mohammad Faraz Anees, Advocate, for Respondent ORDER Per: Anil Choudhary The issue in this appeal is whether the respondents-importer have mis-declared the description and value of the imported goods attracting confiscation etc. 2. The brief facts of the case are:- The brief facts of the case are that the appellants filed a Bill of Entry No.007353 dated 29/09/2011 throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SM (as such) = 299.3 2.4 Shri Anil Rana, proprietor of M/s Jai Durga Electronics appeared before the proper officer at ICD Loni, on 29/12/2011 to tender his statement and stated that they are the traders of Acrylic sheeting other related items, and the imported item is made up of acrylic which is tearable, used for screen printing and used for advertisement, whereas the PVC sheeting or reflective sheeting is not tearable. The appellant stated that the value of the goods is as per the manufacturer s price invoice and it may differ from other brands, quality, grade, thickness service life of the acrylic material sheeting. The image of acrylic sheet was taken from the Google and shown to Shri Anil Rana and found that actual acrylic sheet is different from the goods under import and same was also accepted by Shri Rana. Therefore, it alleged that the appellant has mis-declared the description of the goods. 2.5 It was reportedly found that another importer namely M/s Auto Universe, 847/24 Crown Motor Market, Tilak Street, Kashmere Gate, Delhi-110006 imported 1224 Rolls weighing 20000.00 Kgs of goods declared as Reflective Sheeting TM 3200 AB of size (1.22x45.7) from M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposing therein as to why:- (i) The declared assessable value of ₹ 5,82,992/- of the goods imported vide Bill of Entry No.0007353 dated 29.09.2011 should not be rejected in terms of Rule 12 of the CVR, 2007 and why the same is not re-determined at ₹ 17,68,652/- in terms of Rule 4/Rule 5 of the CVR, 2007. (ii) The said goods of re-determined assessable value at ₹ 17,68,652/- imported vide Bill of Entry No.007353 dated 29.09.2011 and placed under seizure vide Panchnama dated 27.01.2012 should not be confiscated under Section 111 (d, f m) of the Customs Act, 1962. (iii) Customs duty, as applicable, should not be charged at the re-determined assessable valued at ₹ 17,68,652/-. (iv) Goods assessable valued at ₹ 1,05,17,870/- imported through ICD Loni in the past, should not be confiscated under Section 111 (d, f m) of the Customs Act, 1962. Since the goods are not physically available, why redemption fine in lieu of confiscation should not be imposed. (v) Customs duty amounting to ₹ 12,00,875/- which was short levied/short paid by them should not be recovered from them under Section 28 (4) off the Customs Act, 1962 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t . The reflective properties should have been confirmed on the basis of documentary evidence like technical literature, etc. CRCL report or expert opinion, which is found missing with respect to this. In absence of any concrete evidence, and only on the basis of assumption and presumption, the finding of the Adjudicating Authority regarding mis-declaration and conformation of product as Reflective Sheet adhesive type/Acrylic Reflective sheet is not tenable. Accordingly, it was found that the finding of the adjudicating authority as regards mis-declaration is not correct. Further, the adjudicating authority has observed that there is no evidence in support of the finding. Further, the learned Commissioner considered that whether the goods imported by the respondent and imported by M/s Auto Universe in terms of Rule 2 (f) of CVR, 2007. Further, observing that on perusal of the definition as given in Rule 2 (f) for similar goods it is clear that the impugned goods of the respondents should have been similar to the goods subsequently imported by M/s Auto Universe with respect to having like characteristics and like component materials which enable them to perform the same functions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, the finding of the adjudicating authority that earlier six consignments were also having same goods is against the documentary evidence, which is not tenable. It was also found that the conclusion regarding the quality of the goods is defective CRCL has made no comment on the reflective property of the goods in question. It was further observed that the comparison made by the adjudicating authority is also against the statutory meaning of similar goods. Further, reference to the the decision of Hon ble Supreme Court in the case of Commissioner of Central Excise, Chennai Vs Vintel Distributions Pvt. Ltd. reported at 2008 (229) ELT 162 (SC) wherein it was observed that the contemporaneous nature of both the goods should be established by giving strong documentary evidence. Mere saying that the goods under dispute are similar to the goods imported by another, is not tenable. It is also observed that the assessment of the impugned goods have been done after lapse of almost 3 months period, on the basis of subsequent import which is against the provisions laid down in this regard. Further, it is observed that the charge of undervaluation should be proved by the Department on the b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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