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TMI Blog2023 (5) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... In respect of bar 2, there is no contravention vis-a-vis claiming the benefit of exemption notification. None of the test reports have shown a purity level of more than 95% there can be a case for undervaluation on which total undervaluation can be Rs. 3,12,735/- by the adjudicating authority involving total duty of Rs. 25000/-. Redemption filed imposed in terms of Section 118 cannot be justified in the present case. In case of bar 2 the same is set aside. For undervaluation of the Gold Bar 2, a penalty of Rs.10 Lakh cannot be justified and is reduced to 10,000/- under Section 112 A of the Customs act. Appeal allowed in part. - Customs Appeal No. 89465 of 2014 - FINAL ORDER NO. 85738/2023 - Dated:- 30-3-2023 - HON BLE MR. SANJIV SRIVASTAVA , MEMBER ( TECHNICAL ) And HON BLE DR. SUVENDU KUMAR PATI , MEMBER ( JUDICIAL ) Shri S. K. Prabhakar , Advocate , for the Appellant Shri D. S. Maan , Deputy Commissioner , Authorized Representative for the Respondent ORDER PER : SANJIV SRIVASTAVA This appeal is directed against order-in-original no. MUM - CUSTOM- PAX-COM-04/14-15 dated 26.07.2014. By impugned order filed as below: I have gone through th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gold Dore Bars by claiming benefit of concessional rate of CVD @ 8% ad-valorem under Sr. No. 318 of Notification 12/2012-Cus dated 17.03.2012 against DGFT License No. 0350002703/3/14/00 dated 14.03.2014. 2.2 The Bill of duty tariff was ordered for first check appraisement and on examination weight of the Bars was found to be as declared and the purity of bars was tested with the spectrometer. The first bar was found to be of 96.78% purity and second bar of 93.68% purity. To ascertain the exact purity each of gold bars was tested in full and purity was found to be 96.54% and 92.64% which was subsequently higher than the declared purity. Appellant requested for SCN and the personal hearing at the earliest. They requested for dealings of the bars which is below 95% for home consumption and the bar which is having purity more than 95% for re-export back to the supplier. 2.3 The case was adjudicated as per impugned order as referred to para 1. 3.1 We have heard Shri. S. K. Prabhakar, Advocate for the appellant and Shri. D. S. Maan, Deputy Commissioner (AR) for the revenue. 3.2 Arguing for Counsel submits that as the notification was admissible to the appellant in cases were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.2014 to clear import parcel of two gold dore bars packed in one package having 9.4802Kg declared net content of gold. The bill of entry was filed by claiming concessional rate of CVD under Sr. No. 318 of Notification 12/2012-Cus under license issued by DGFT for restricted list of import items. As per the import license the importer is allowed to import the gold dore bars upto 95% purity. The gold dore bars were tested by National Test House which is a government of India BIS approved laboratory. The test report of National Test House (WR) clearly shows that both the gold dore bars are of purity 95.4486% and 94.076% respectively. The final test report of National Test House has not been contested by the importer. Therefore, it has been proven beyond doubt that the gold dore bars are not of the declared purity and Bar No. 1 is not covered by the import license as it exceeds the prescribed purity limit of 95%. The Section 111(d) of the Customs Act mandates that any goods which are imported or attempted to be imported are brought within the Indian customs waters for the purpose of being imported contrary to any prohibition imposed by or under this Act or any other law fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prohibited for importation may be allowed to be re-exported. I find that the matter is squarely covered by the judgment of Hon'ble Supreme Court in case of Collector of Customs, Bombay vs Elephanta Oil and Industries Ltd (2003(152)E.LT.257(S.C)) and Board Circular No. 745/61/2003-CX dated 16.09.2003 dated 16.09.2003.13. The Hon'ble Supreme Court has observed as under: We would first deal with the contention raised by the learned senior counsel Mr. Sanghi appearing on behalf of the respondent that once the imported article is re-exported as directed by the department, there is no question of levying any penalty or redemption fine. In our view, this submission is without any substance because confiscation of goods and thereafter permitting the respondent to re-export the same would not mean that penalty under Section 112 of the Customs Act cannot be levied'. The above said Hon'ble Apex Court judgment was relied upon in a catena of judgments which includes: a) Commissioner of Customs (Import), Raigad Vs Amit Banaspati Company Ltd-2007(218 ELT 336(BOM) b) M/s M. V. Marketing and suppliers Vs Commissioner of Customs (Import), Chennai-200-( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Particulars BAR 1 BAR 2 Purity Percentage declared on Bill of Entry (%) 94.79 91.66 Weight (Kgs.) 5.0166 5.0619 Purity Percentage upon Examination (%) 96.78 93.68 Purity Percentage upon full testing (%) 96.54 92.64 NTH (%) 95.44 94.076 Declared Value (Rs.) 1,23,95,213 1,18,81,774 Actual Value (Rs.) 1,24,81,754 1,21,94,509 Differential Amount (Rs.) 86,541 3,12,735 Redemption Fine (Rs.) 20 Lakhs 2 Lakhs Penalty (Rs.) 10 Lakhs 4.4 From the facts as above it is evident that the percentage of purity which is very relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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