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TMI Blog2018 (11) TMI 1764X X X X Extracts X X X X X X X X Extracts X X X X ..... above informed the appellant that it had no choice but to relinquish title to the goods, the department is left with no option but to order absolute confiscation of the imported goods. As the goods are absolutely confiscated the question of redemption fine does not arise. Further, since the goods are absolutely confiscated there is no question of payment of duty by the appellant. Instead of the option of redemption given in Order-in-Original, now the goods imported under Bill of Entry No. 6002022, dated 16-4-2018 are absolutely confiscated - penalty set aside. Appeal disposed off. - Order-in-Appeal No. 1649 (Gr. IIH-K) 2018 (JNCH)/Appeal-II, - - - Dated:- 2-11-2018 - Dr. Ram Niwas, Commissioner of Customs (Appeals) ORDER This appeal has been filed by M/s. Dhruv Trading, (hereinafter referred to as appellant) against Order No. 579/2018-19/JC/NS-1/CAC/JNCH, dated 26-7-2018 passed by Joint Commissioner of Customs, Group 2K, (NS-I), JNCH the Original Authority (hereinafter referred to as OA). 2. Briefly stated facts of the case are as under : 2.1 Appellant filed a Bill of Entry No. 6002022, dated 16-4-2018 for clearance of Stock Lot of Mix Paper of poly coate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also imposed penalty of ₹ 2,50,000/- on the appellant under Section 112(a) of the Customs Act, 1962. The OA held that the undeclared goods found in the import consignment have different values than declared value. Hence, the declared values are rejected under Rule 12 of CVR, 2007 and the value is redetermined under Rule 5 of the CVR, 2007. The appellant has also contravened the provisions of Section 46 of the Customs Act, 1962 by misdeclaring the description and quantity of the impugned goods. The OA also held that the declared goods were used to conceal the undeclared goods and the explanation of the importer are after thought. 4. Aggrieved with the above order, the appellant has filed the present appeal on the following grounds : (i) Appellant submits that this is the first time that a show cause notice has been issued to them, for the mistake committed by the supplier. Appellant has never come to adverse notice of the department. (ii) OA has relied upon the NIDB data for redetermining the value but the data was never provided to the appellant or to the supplier before redetermining the value. Valuation has to be only arrived after following the due proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the adjudicating authority and hence, the finding of the adjudicating authority that the importer has contravened Section 46 of the Act is not founded on any evidence of whatsoever nature. The appellant submits that he has been importing consignment for the last more than 10 years and has not come to any adverse notice of the department till date. In fact, he has imported approximately 150 containers out of which 105 containers pertaining to various consignment were examined 100% by the concerned officer and all the goods have been finally assessed and allowed clearance. The appellant also submits that the Commissioner of Customs (NS-III) has been pleased to issue letter to the appellant informing about Direct Port Delivery (DPD) facility available to him, which he has not availed and has requested/invited the appellant to utilize the DPD facility. (v) The findings of the OA in para 20 is erroneous in nature in view of the above submission that the appellant has no reason to carry out such miniscule activity of misdeclaration, looking into the fact of huge imports being made by the appellant which has been finally assessed and cleared by the department. (vi) The fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Entry for clearance of goods declared as Stock Lot of Mix Paper of poly coated, mix colour, metalized, kraft in tear sheets and end reels (Mix size, Mix GSM) with declared gross weight 39626 kgs and the declared value as ₹ 2,46,742.78. On examination it was found that few pallets/cartons of declared items were stuffed in the containers and the remaining cargo was found to be undeclared consumer goods like Foam Plates, Spoons, cups, glasses, Bottles, Soft toys, etc. The total weight found during the examination was 38.910 MTs instead of 37.44 MTs declared in the Bill of Entry. Since the impugned goods did not correspond in respect of description and quantity mentioned in the Bill of Entry, the Original Authority has rightly held the goods liable to confiscation under Section 111(l) and 111(m) of the Customs Act, 1962. The appellant submits that they had placed order for the goods Stock Lot of Mix Paper of poly coated, mix colour, metalized, kraft in tear sheets and end reels and hence assumed that the said goods are supplied, and that on the basis of the invoice and packing list, the Bill of Entry was filed by them. Appellant submits that immediately on knowing that wron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant. There is no evidence of the complicity of the appellant. There is no evidence on record to prove that the appellant had intentionally misdeclared the goods in order to evade customs duty. I observe that the goods imported by the appellant are found to differ from the declarations on the Bill of Entry. The above letters and circumstances lend credence to the version of the appellant that he had declared the goods in the Bill of Entry on the basis of the invoice and packing list presuming that the imported goods are supplied as per their invoice and packing list. Hence, I hold that the appellant had no intention to misdeclare the goods and evade the customs duty. 10. The appellant submits that they have been importing consignments for the last 10 years and have not come to any adverse notice of the department till date; that almost 105 containers pertaining to various past consignments were examined 100% by the concerned office and all the goods have been fully assessed and allowed clearance. To support his credentials, the appellant further submits that the Commissioner of Customs (NS-III) has been pleased to issue letter to the appellant informing about Direct Port Delive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not find it a fit case to impose penalty under Section 112(a) of the Customs Act, 1962. 13. Since, the appellant is now not claiming the goods and the appellant submits that the supplier vide letter dated 27-8-2018 above informed the appellant that it had no choice but to relinquish title to the goods, the department is left with no option but to order absolute confiscation of the imported goods. As the goods are absolutely confiscated the question of redemption fine does not arise. Further, since the goods are absolutely confiscated there is no question of payment of duty by the appellant. The appellant is also challenging the redetermination of value done by the original authority. But I am not going into the aspect of valuation as the goods are ordered to be absolutely confiscated and hence the aspect of valuation of goods is not relevant to the appellant. 14. In view of above, I uphold the Order-in-Original No. 579/2018-19/JC/NS-I/CAC/JNCH, dated 26-7-2018 with the following modifications : (a) Instead of the option of redemption given in paragraph 22(b) of the Order-in-Original, now the goods imported under Bill of Entry No. 6002022, dated 16-4-2018 are absolu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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