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TMI Blog2022 (11) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods imported does not vary. It must also be noted that abatement under section 22 only covers damages before or during unloading or after unloading but before examination due to accidents. Natural deficiencies in the imported material such as irregular edges which occur naturally are not covered under this section - It must also be noted that abatement of duty under section 22 and remission of duty under section 23 are exceptions to the levy of customs duty under section 12 on all goods imported. Hence, these provisions must be applied with due diligence and after recording the facts and also the satisfaction of the officer as required. In this case, the quantity of goods declared was 1,192.30 square metres while on examination 2,530 square metres was found. The adjudicating authority reduced it by 20% (towards corner cuts) and considered only 2,024 square metres as imported. Although the excess quantity imported was 1,307.70 square metres (2,530 1192.30) he confiscated only 831.70 square metres (2,024 1,192.30). The excess quantity of goods found are liable for confiscation under section 111(l) - The confiscated goods were valued at Rs.21,89,084 and hence the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it price of USD 40/Sqr. Mtr. Imported vide Bill of Entry No. 2932417 dated 21.08.2017 and confirm total assessable value of Rs. 21,89,084/- for said offending goods. (ii) I confirm the demand of additional duty of Rs. 11,90,161/- (Rupees Eleven Lakh Ninety Thousand One Hundred Sixty One only) on the offending goods. (iii) I order for confiscation of the offending goods having assessable value of Rs. 21,89,084/- under Section 111 (1) of the Customs Act, 1962. However, I give an option to the importer to redeem the same on payment of Redemption Fine of Rs. 5,00,000/- (Rupees Five lakh only) under Section 125 of Customs Act, 1962. (iv) I also impose a penalty of Rs. 1,20,000/- (Rupees One Lakh Twenty Thousand only) upon the importer under Section 112 (a) (ii) of Customs Act, 1962 . 6. Assailing this order, the Appellant filed Writ Petition (Civil) No.2632 of 2018 before Delhi High Court assailing the adjudication order passed by the Additional Commissioner. The High Court disposed of the Writ Petition by order dated 12.07.2018. The operative part of the High Court s order is as follows: Having heard the learned counsel for the parties, this Court is of the opinion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quare metres as indicated in the invoice and packing list and not 2530 square metres as per the examination report which was further reduced to 2024 square metres after allowing 20% abatement towards corner cuts. c. That they should be given an abatement of 35% instead of 20% of the marble imported towards corner cuts allowed by the adjudicating authority. d. The examination was done without following any particular method. e. Some of the goods were damaged with hair line cracks, bubble marks, chemical damages, etc., which were not taken into account. f. The quantity of 1192.30 square metres which was declared in the Bill of Entry must be released to it on payment of appropriate duty and penalty which is mentioned in the order dated 31.7.2018 itself. These must be released to the appellant to avoid demurrage, detention charges, etc. from the shipping line. g. The appellant has suffered substantial financial loss which is affecting its liquidity and profitability. 12. The prayer in the appeal is to: (a) as an interim measure, release the non-offending goods 1192.30 square meters on payment of duty; (b) set aside the impugned order and to hold that the method ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declare the quantity of the polished marble slabs which it had imported? b) Were the letters accepting the measurement given by the appellant accepting the examination and waiving the show cause notice given under duress? c) Can the appellant s prayer to accept the quantity declared in the invoice and packing list as the actual quantity imported be allowed? d) Do any changes or hairline cracks or chemical damage in the middle of the marble slabs, alter the quantity of the marble imported? e) How much, if any, abatement should be considered towards the corner cuts? f) Was the quantity of marble which was mis-declared liable for confiscation? g) Is the quantum redemption fine imposed by the original authority and affirmed by the impugned order fair and proper? h) Is the quantum of penalty imposed under section 112(a) fair and proper? 15. The quantity declared in the Bill of Entry and in the invoice and packing list is a matter of record. The quantity actually found is based on physical examination by the officers, which is a standard procedure (though examination is not carried out in each and every Bill of Entry). This examination was not conducted behind the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red and what is actually imported, the duty and prohibitions are to be applied on what is actually imported. If X quantity is declared in the import documents and Y quantity is actually imported, duty has to be levied on Y quantity. For instance, in oil imports, the quantity declared in the Bill of Lading based on the Ullage Report and the quantity actually imported as per the Shore Tank readings are often at variance with each other. Duty has to be paid on the shore tank quantity. Conversely, if a larger quantity of goods is imported than what is declared in the documents, duty has to be charged on such larger quantity. If the import documents declared the goods to be, say, iron, and actually gold is imported, duty, prohibitions, etc. on gold should be applied. In this case, since the quantity actually imported is more than what was declared, the declared quantity cannot be reckoned as imported quantity. We, answer the question (c) raised in paragraph 13 above against the assessee and in favour of the Revenue. 17. To calculate the quantity of excess marble imported over what was declared, the adjudicating authority allowed a deduction/abatement of 20% towards corner cuts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or default by the importer 19. To claim abatement under section 22, the importer has to prove to the satisfaction of the Assistant Commissioner/Deputy Commissioner that the damage occurred before unloading or during unloading or after unloading due to an accident. The importer further has to prove to the satisfaction of the Assistant Commissioner/Deputy Commissioner that the accident has not occurred due to any wilful act or negligence or default on its part. Unless these conditions are met, abatement cannot be granted under section 22. Nevertheless, the Additional Commissioner allowed abatement of 20%. He should have recorded as to why he was granting 20% abatement and should have also recorded his satisfaction that damage had occurred and also, if it had occurred before or during unloading or after unloading and before examination. If it had occurred after unloading and before examination, he should have recorded if there was an accident and such an accident occurred without any wilful act or negligence or default on the part of the importer. Without recording the fact that there was damage at one of these three stages and without recording his satisfaction, he should not ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 20% (towards corner cuts) and considered only 2,024 square metres as imported. Although the excess quantity imported was 1,307.70 square metres (2,530 1192.30) he confiscated only 831.70 square metres (2,024 1,192.30). The excess quantity of goods found are liable for confiscation under section 111(l) and we find no reason to interfere with it. 25. The excess quantity of marble confiscated was allowed to be redeemed on paying a redemption fine of Rs. 5,00,000. The confiscated goods were valued at Rs.21,89,084 and hence the fine of Rs.5,00,000/- is fair and we find no reason to interfere with it. Likewise, the penalty of Rs, 1,20,000/- imposed on the appellant is also fair and we find no reason to interfere with it. If the goods are redeemed under section 125(1), the importer also has to pay customs duty under 125(2). Therefore, the demand of duty also deserves to be upheld. We, therefore, answer questions (f), (g) and (h) in favour of the Revenue and against the appellant. 26. The appellant s prayer for interim relief by releasing only the quantity of goods actually declared cannot be accepted because there is no provision for giving customs out of charge to only a pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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