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TMI Blog2023 (7) TMI 967X X X X Extracts X X X X X X X X Extracts X X X X ..... It also needs to be pointed out that the SIIB officers also received specific intelligence about this mis-declaration and place an alert in the customs EDI system. On examination, the mis-declaration was proved. The difference in quantity is substantial as 42% more goods were imported then what were declared. When excess quantity of goods were found, it was logical for the officer assessing the bill of entry to reject the transaction value because, the transaction value reflected in the invoices and other documents was for declared quantity and not for the quantity actually imported. Once the declared assessable value is rejected under Rule 12 of the valuation rules, valuation should be proceeded under Rules 4 through 9. In this case, rule 5 of the Valuation Rules was applied and the assessable value was enhanced from Rs. 40,62,307/- to Rs. 43,42,301/-. Consequently, the duty liability increased by Rs. 2,79,994/- and the re-determined value has been accepted by the importer in its letter dated 06.10.2017. Therefore, there are no infirmity whatever in re-assessing duty on the imported goods. In this case, the goods were found to be in excess of the entry made i.e. the bill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigated the matter and it found that the quantity of goods actually imported was 21,660 kg against the declared weight of 15,231 kg. The number of the LEDs found were also different from what was declared under bill of entry. 2. The appellant submitted letters dated 27.09.2017 and 05.10.2017, waiving the requirement of show cause notice SCN and personal hearing and prayed that the goods may be released at the earliest. Accepting the prayer, the Additional Commissioner of Customs, ICD TKD, re-assessed the bill of entry and confirmed higher amount of duty. He also confiscated the goods and allowed their redemption on payment of fine and imposed penalties. The operative part of the order is reproduced below: ORDER i. I reject the transaction value of Rs. 40,62,307/- as declared by the importer in respect of the goods covered under the subject Bill of Entry No. 3307384 dated 20.09.2017 contained in the Container No. UETU5512830, under Rule 12 of Customs Valuation (Determination of Value of Imported Goods,) Rules 2007 read with Section 14 of the Customs Act, 1962. ii. I order for re-determination of value of the impugned goods to Rs. 43,42,301/- under rule 5 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pliers. Therefore, importer had not knowingly or intentionally made or signed any false declaration or submission. Therefore, the penalty under section 114AA cannot be invoked. (iii) During the pendency of the adjudication proceedings the appellant had incurred demurrage charges and detention charges which were not considered by the Department while imposing the redemption fine. Therefore, it can be said that the adjudication authority has not considered and arrived at the correct margin of profit while imposing the redemption fine under section 125(1) of the Customs Act, 1962. (iv) Further, the goods are themselves not liable for confiscation and, therefore, neither any fine under section 125 nor any penalty under section 112 should have been imposed. 6. Learned authorized representative appearing for the Revenue made the following submissions; (i) It is undisputed that quantity declared in the bill of entry was much lower than what was actually found during examination and, therefore, the goods had to be valued accordingly. Value of the imported goods was re-determined based on the values of contemporaneous imports of goods during the relevant period which has been ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the penalty imposed under section 114AA is only about 11 % of the value of the goods. (ix) For these reasons, the impugned order is correct and proper and calls for no interference the appeal may be dismissed. 7. We have considered the submissions on both sides and perused the records. 8. It is undisputed that the appellant filed a bill of entry declared certain goods and on examination, 42% more goods were found by the customs authorities. Learned counsel for the appellant emphasized that the excess quantity was found during first check examination. We find that the law does not distinguish between the first check and the second check. What is important if the appellant made the correct declaration in the bill of entry or not. The bill of entry was filed on 20.09.2017 by the appellant. It does not matter whether the apprising group, thereafter, decides to assess the goods first based on the documents and then gets them examined or gets the goods examined first. In both cases, the mis-declaration in the bill of entry is already complete. 9. It also needs to be pointed out that the SIIB officers also received specific intelligence about this mis-declaration and pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the value of the goods. Section 125 of the Act places the restriction that the amount of fine cannot exceed the market value of the goods. In the factual matrix of this case, we find the redemption fine imposed is just and fair. 14. Section 112(a)(ii) provides for penalty on any person 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. The penalty imposable in case of dutiable goods cannot exceed 10% of duty sought to be evaded. In this case the duty sought to be evaded which was then enhanced by the impugned order is Rs. 2,02,877/- the penalty imposed under section 112 is Rs. 20,000/- which, in the factual matrix of the case, is fair and proper. 15. We have considered the submissions regarding penalty under section 114 AA which reads as follows: Section 114AA in the Customs Act, 1962 114AA. Penalty for use of false and incorrect material. If a person knowingly or intentionally makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document which is false or incorrect in any material particular, in the transaction of any business ..... X X X X Extracts X X X X X X X X Extracts X X X X
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