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TMI Blog2022 (10) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... it must be U.S. $ 163 per unit - It is not open for the appellant to question that the price having accepted the same and further having undertaken to pay the differential duty accordingly. Therefore, even the reduction of the assessable value to U.S. $ 147.5 by the Joint Commissioner does not appear to be correct. Nevertheless, this reduction has not been assailed by the Revenue and is said to be based on another value found in another case of M/s Mittal Impex - the redetermination of the assessable value and consequently the determination of the duty liability by the Adjudicating Authority as upheld by the Commissioner (Appeals) in the impugned order is correct and calls for no interference. Confiscation of the goods under section 111 (m) of the Customs Act - HELD THAT:- Any goods which do not correspond in respect of value or in any other particular with the entry made under the Customs Act are liable for confiscation under this section. It is undisputed that both the nature of the goods imported and the quantity of the goods imported did not correspond to the declaration made in this case. Further, the value declared was also much lower and was, even according to the docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the value of U.S. $ 66 per piece. However, in the Bill of Entry it classified the imported goods as parts of TV under 8529 of the Customs Tariff attracting duty @ 37.47% instead of classifying them under 8528 as complete TVs attracting duty @ 56.16%. The Bill of Entry was processed by the Customs Risk Management System [ RMS ] and it was not marked for either assessment or examination or for giving out of charge by the Customs officer. However, the appellant doubted the authenticity of the documents and the consignment and on its own requested the officers to recall the Bill of Entry. Accordingly, the Bill of Entry was recalled and goods were examined 100% and it was found that they were complete smart LED TVs and not LED TVs, as declared by the appellant or parts of LED TVs as classified by the appellant. As the goods were different from what was described in the import documents and declared in the Bill of Entry, their value was re-determined @ U.S. $ 163 per smart TV. Further, the total quantity of imported televisions was 742 and not 740 as declared by the appellant. The value was thus enhanced by the Assessing Officer and the appellant had agreed to the enhanced value and wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l under section 114AA. 5. Aggrieved, the appellant appealed to the Commissioner (Appeals) who, by the impugned order, upheld the order the lower authority except to the extent of reducing fine under section 125 to Rs. 5,00,000/- and reducing the penalty under section 114AA to Rs. 13,68,819/-. Hence this appeal. 6. Learned Consultant for the appellant Shri B.L. Yadav made the following submissions :- (i) The bill of entry was filed by the appellant and it was cleared by the RMS without examination, assessment or out of charge being given by the officers. However, on a bonafide doubt about the authenticity of the documents as well as the consignment, the appellant itself had requested the officers to recall the bill of entry and re-assessed the goods. The goods were re-assessed on the basis of an SIIB Circular of the Commissionerate to U.S. $ 163 per piece instead of U.S $ 66 per piece as declared by the appellant ; (ii) During examination 742 pieces of smart LED TVs were found instead of 740 pieces of LED TVs declared by the appellant. The appellant had contacted its overseas supplier who said that it had inadvertently wrongly sent smart LED TVs instead of LED TVs and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty under Section 114AA. (x) The bill of entry was filed on the basis of documents and supplied by the foreign supplier and therefore there was no intentional or deliberate wrong declaration or mis-declaration and, therefore, the goods were not liable for confiscation under section 111 (m). Consequently, the penalty under section 112 (a) (ii) could not have been imposed upon the appellant. 7. In view of the above, learned Consultant for the appellant prayed that the impugned order may be set aside with consequential relief. 8. Learned Authorized Representative appearing for the Department supports the impugned order. He submits that : (i) In the bill of entry dated 03.05.2018 the goods were declared as Teckmax LED TV Model 40 and were classified under CTH 85299090 and a value of U.S. $ 66 per unit was declared. The tariff heading 85299090 pertains to parts of television and not to televisions. On examination, not only was it found that there were 742 pieces of television instead of 740 pieces as declared, but the model of the TV was also completely different. Instead of LED TVs, as declared, smart LED TVs with additional features including Wifi one GB RAM 8 GB HDD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Commissioner (Appeals) committed an error in allowing the appeals, it is not necessary to decide whether the appeals against the accepted transaction value were maintainable or not. 50. All the 36 orders passed by the Commissioner (Appeals) that have been impugned, therefore, deserve to be set aside and are, accordingly, set aside and the 36 Appeals filed by the Commissioner of Customs are allowed . 9. He further submits that the High Court of Allahabad has also held in M/s S.S. Overseas and others versus Union of India [ 2022 (8) TMI 344 Allahabad High Court ] that where the petitioners had confirmed in writing the acceptance of re-assessment they are exists no occasion to pass a speaking order on the re-assessment and accordingly dismissed the batch of writ-petitions. Therefore, the appellant, having accepted the assessable value of U.S. $ 163 per piece through several letters, cannot now assail the same. Although, the appellant have agreed to U.S. $ 163 per piece as the value, the Adjudicating Authority adopted a still lower price of U.S. $ 147.5 per piece. However, since there is no Department s appeal against this reduction, he is not contesting this reduction of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us smart TV and also made mistake in the quantity, as they sent 742 pieces instead of ordered 740 pieces. I wish to say that there is very small difference between LED TV and smart TV that we import i.e. smart TV has Wifi feature. Although we accept our mistake and we undertake to pay the differential duty and penalty, as applicable . 15. In a subsequent statement recorded on 05.09.2018, the following question was asked, Question 7 : You have seen case files of M/s Mittal Impex, M/s KML Electronics Pvt. Ltd. and M/s Air Tec Electro Vision Ltd., these TVs and your TVs are of same reputation. What should the unit price of your smart TV? Answer : I have seen the above case file and after observing these , I accept that unit value/price of over 40 Inch TV should be 163 U.S. $ and I undertake to pay differential duty on it. 16. Both the above statements were certified as having been tendered without fear or pressure or any buress. They have not been retracted. 17. We thus, find that based on the information and evidence produced in the form of files before the appellant by the officers, the appellant has voluntarily suggested/accepted that the price of smart LED TVs imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the quantity of the goods imported did not correspond to the declaration made in this case. Further, the value declared was also much lower and was, even according to the documents produced by the appellant, not the price of smart LED TVs which were imported. We, therefore, find no infirmity in the confiscation of the imported goods under section 111 (m) or in giving the option of redemption under section 125 by the Original Authority. While fine of Rs. 10,00,000/- was imposed by the Original Authority it was reduced to Rs. 5,00,000/- by the Commissioner (Appeals) in the impugned order. This reduction of fine has not been assailed by the Revenue. We, therefore, find no infirmity in both the confiscation of the goods and also in the imposition of redemption fine of Rs. 5,00,000/-. 20. Section 112 (a) (ii) reads as follows : SECTION 112. Penalty for improper importation of goods, etc . - Any person, - (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act, or (ii) in the case of dutiable goods, other than prohibited goods, subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and hence suspecting the Appellant of intentional mis-declaration with an intention to evade duty seems to be stretched too far and misconceived; that if they had any malafide intention they would have taken the goods out of charge which was already cleared under SRP system. In view of the above, I find a reason for interference in imposition of penalties on the Appellant. Redemption fine of Rs. Ten Lakhs is also high and excessive keeping in view the value enhanced by Rs. 42,51,208/- (Rs. 75,08,836.00 Rs. 32,57,628.00). Hence, I reduce the redemption fine to Rs. Five Lakhs only under Section 125 of the Customs Act, 1962 . 24. The specific finding of the Commissioner (Appeals) was that the appellant had, on his own, sought recall of the Bill of Entry and, therefore, had no malafide intention. There is no appeal by the Revenue against this finding. Having found that the appellant had no intention, the Commissioner (Appeals) has still proceed to confirmed a reduced penalty under section 114AA upon the appellant. We find that this cannot be sustained because once the intention is lacking, no penalty can be imposed upon the appellant under section 114AA. 25. In view of the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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