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TMI Blog2021 (12) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Commissioner was correct in accepting the value declared by the importer and ordering finalization of the provisional assessment accordingly. Confiscation of the goods under Section 111 (m) and imposition of redemption fine - HELD THAT:- Since, there was no mis-declaration of value as has been correctly found by the learned Commissioner, the confiscation of the goods cannot be sustained on another ground that the description of the goods did not match with that in the test report - the description of the goods in the test report was only an elaboration of the description already given in the bills of entry and nothing else. This cannot be called a mis-declaration of the description of the goods. Therefore, confiscation of the goods under Section 111 (m) and imposition of penalty under Section 125 cannot be sustained and need to be set aside. Imposition of penalty under Section 112 (a) - HELD THAT:- The penalty under Section 112 (a) is imposable for acts or omission which render goods liable for confiscation under Section 111. Since it is found that the confiscation cannot be sustained neither can be the penalty under Section 112 (a). Penalty under Section 114AA of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4313461 dated 19.02.2016, 4396390 dated 26.02.2016, 4394604 dated 26.02.2016, 6253308 dated 05.08.2016 and the imported items will be correctly held to be Embroidery 1Impugned order Beads/Stones (Plastic content of Acrylic/ABS/PS ABS/ABS PMMA as reported by CIPET) ; (ii) I order confiscation of the imported goods under Section 111 (m) of the Customs Act, 1962 but allow the said importer to redeem the goods on payment of redemption fine of ₹ 90,00,000/- (Rupees ninety lakh) under Section 125 of the Customs Act, 1962 ; (iii) I impose penalty of ₹ 10,00,00/- (Rupees ten lakh) under provision of Section 112 (a) of the Customs Act, 1962 on the said importer ; (iv) I impose penalty of ₹ 10,00,000/- (Rupees ten lakh) under provision of Section 114AA of the Customs Act, 1962 on the said importer . 2. The appellant imported goods described as Embroidery Beads/Stones vide the 25 bills of entry filed between September 2015 and August 2016 and the bills were provisionally assessed and samples of the imported goods were sent for testing into the Central Institute of Plastics Engineering and Technology, Haldia (CIPET) and in the test memos two questions we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant under Section 112 (a) of the Customs Act. No proposal was made in the show cause notice to impose penalty under Section 114AA. The findings of the learned Commissioner in paragraphs 9 to 12 of the impugned order were as follows :- 9. I have gone through the case records and the submissions made by the said importer. Two main issues are to be decided. The first is regarding the finalization of the Provisional Assessment as per proviso of Section 18 (2) of the Customs Act, 1962. The second is whether the goods imported vide the said 25 Bills of Entry are liable for confiscation under Section 111 (m) of the Customs Act, 1962 and whether penalty is to be imposed as per Section 112 (a) and/or Section 114AA of the Customs Act, 1962. 10. I find that in the Office Note dated 03.09.2015 issued by the SIB, Custom House, Kolkata vide F. No. 121-37/2015 SIB (Port) values of different items including ABS have been fixed without explicitly indicating the country of origin of the goods, contemporary prices of the imported items, value addition breakups, reference Bills of Entry. It is well established fact of law that a uniform price for import cannot be set by Customs authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an incorrect declaration before the Customs authorities with an intention to misguide the assessing officer and defraud the revenue. Moreover, if the importer was unsure of the composition of the impugned goods, he should have subscribed to a declaration before the proper officer, that he was unable, for want of full information, to furnish all the particulars of the goods required, in view of the proviso to Section 46 (1) of the Customs Act, 1962, but the importer did not do so and cannot claim refuge under the veil of ignorance as an after thought. Therefore, he is liable to be penalized under Section 114AA of the Customs Act, 1962 for deliberate misdeclaration of the import details in the said 25 Bills of Entry. 5. Assessee s appeal is filed assailing the confiscation of the goods, imposition of fine and penalty. Revenue s appeal is filed on the ground that the Commissioner has wrongly ordered finalization of the bills of entry as per the declared value instead of ordering valuation as per the show cause notice and ordering recovery of the appropriate amount of customs duty. It is also asserted in the Revenue s appeal that the amount of redemption fine imposed by the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y were misdeclared. While assessing the bill of entry, if the assessing officers were not satisfied with the description and wanted more details, they could have sought there from the importer. It is evident from the test report and the description of the goods as recorded in the impugned order itself that the goods were exactly as they were described. Coming to the rejection of the declared value and re-determination of the value as proposed in the show cause notice, it is based on : (a) the Circular of DGOV (Directorate General of Valuation), and (b) Office Note of the SIB of the Commissionerate. 9. We find that the Office Note of the SIB is based on the DGOV Circular. It does not deal with the specific importer or import consignments in dispute. The DGOV Circular categorically holds that if there are reasons to doubt the truth and accuracy of the declared values, valuation has to be done as per the Customs Valuation Rules, 2007. In the show cause notice no reason has been given to doubt the truth and accuracy of the declared value. 10. DGOV s letter also clarified that in no case can a price be considered as minimum base price for assessment. The relevant paragraphs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y other manner. Therefore, the learned Commissioner was correct in accepting the value declared by the importer and ordering finalization of the provisional assessment accordingly. Confiscation of the goods under Section 111 (m) and imposition of redemption fine :- 12. Learned Commissioner has, in the impugned order, held that the appellant has mis-declared the goods and the description of the goods in the bills of entry was Embroidery Beads/Stones whereas they were found to be Embroidery Beads/Stones (Plastic content of Acrylic/ABS/PS ABS/ABS PMMA) in the test report. The proposal for confiscation under Section 111 (m) in the show cause notice was on the ground that there was mis-declaration of value. Paragraph 12 (ii) of the show cause notice reads as follows:- 12 (ii) The subject goods should not be confiscated under Section 111 (M) of Customs Act, 1962 for misdeclaration of value as mentioned above . 13. Since, there was no mis-declaration of value as has been correctly found by the learned Commissioner, the confiscation of the goods cannot be sustained on another ground that the description of the goods did not match with that in the test report. We fur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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