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TMI Blog2023 (9) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of the impugned goods have to be based on the basis of available records. On record, is the specific finding of the Examination Committee pointing out the old and used nature of the goods - a very small percentage of bales which on re-examination by DRI, had been found to contain quilts, bags, curtains, etc. would also have to go alongwith old and used worn clothing as for their valuation and classifiable under CTH 6309 or the appropriate heading under the Customs Tariff. The declared assessable value of old and used garments imported was rejected, in terms of Explanation 1(iii)(a) to Rule 12, wherever the declared value was less than USD 0.60 per Kg CIF. It is a well settled principle that in case of old and used goods, if the value is liable for rejection, the same cannot be determined under Rules 4 to 8 as these goods do not have uniform standards and can only be re- determined under Rule 9 of CVR, 2007 - Similar view has been taken by the Tribunal in the matter of BK. SPINNING MILLS (P) LTD. VERSUS COLLECTOR OF CUSTOMS, COCHIN [ 1999 (8) TMI 359 - CEGAT, NEW DELHI] wherein it was held that the (erstwhile) Rule 8 of the Customs Valuation Rules was correctly applicable i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oticees, against whom the department had any misgivings about the legality and propriety of the impugned order in appeal. The CESTAT registry vide Defect Memo No. SP/75400/16-C/76022/16- dated 04.07.2016 had also pointed out the same. The said defect memo at Sr. 17 reads: Joint appeals are not admissible. This appeal treated M/s Rabbi Traders to file separate appeal for others respondent. In view thereof the present appeal filed by the department is being considered as to have been filed against the principal party alone. 3. The facts of the case are that the respondent Rabbi Traders, Delhi imported old and used worn clothing, completely fumigated which were allowed to be cleared upon re-determined values, imposition of redemption fine and penalty. The proceeding arise out of show cause notices (A) DRI F.No. 127/KOL/APP/2008 Rabbi dated 26/27.11.09 for bill of entry no. 422965 dated 29.07.08; and (B) DRI F.No. 127/KOL/APP2008/Rabbi dated 26.07.2010 for bill of entry no. 421013 dated 18.07.08 issued by the Directorate of Revenue Intelligence. 4. The primary issue involved in the appeal is the challenge to the methodology of examination undertaken by the DRI. They ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the goods, as old and used garments had been found on re- examination by the investigating agency to contain garments having no signs of appreciable wear , therefore, did not merit classification under Tariff Item 63090000 of the 1st Schedule of the Customs Tariff Act, 1975, as declared by the importer. Further, these consignments under impugned two Bills of Entry were found to contain quilts as well which the investigating agency had sought to classify the said goods on merit under respective headings of the CTH as detailed in the show cause notice. It is alleged that the importer had resorted to incomplete description in respect of the subject goods, which amounted to mis- declaration. 5.1. We thus find that the case revolves around the primary contention that the impugned goods are other than Old and Used garments . The key issue for determination here is, therefore, whether the imported goods are indeed Old Worn Clothing Completely Fumigated as had been claimed by the importer at the time of importation or otherwise. Determination of Classification and valuation as well as the culpability of the noticee, if any, can follow only after determination of this key i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appreciable wear . Similarly, ld. Commissioner has found that in most of the articles of the consignment. Admittedly, most does not denote all . Thus the findings are based on presumptions and assumptions. 7.5 Further, from the panchnama, SCN and finding of the Ld. Commr., nothing specific is revealed as to how many articles have no sign of appreciable were. The DRI proceeded on the basis that the particular type of Code No. carries similar goods, since the bales carried consignment of cloth of various kinds only, merely on presumption, it cannot be held to carry same type of articles. It is cardinal principle that while fixing the liabilities the same should be specific and not based on mere estimation or guess work. Undisputedly, the consignment was not subjected to 100% examination and no scientific method of sampling was followed. We are of the opinion that the sample test by DRI could not be appropriate in the present case while challenging the earlier report of the Examination Committee, especially when re-examination of the consignment was resorted to by shunning the report of examination carried out earlier by the Examination Committee. (Emphasis Supplie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is given in paragraphs (1) and (2) of this Explanatory Note must comply with both of the following requirements. If they do not meet these requirements they are classified in their appropriate headings. (A) They must show signs of appreciable wear whether or not they require cleaning or repair before use. New articles with faults in weaving dyeing etc. and shop-soiled articles are excluded from this heading. (B) They must be presented in bulk (e.g. in railway goods wagons) or in bales, sacks or similar bulk packings or in bundles tied together without external wrapping or packed roughly in crates. These articles are normally traded in large consignments usually for resale and are less carefully packed than is generally the case with new articles. * * * Subject to compliance with the above requirements this heading covers the goods in the following limitative list only: (1) The following articles of textile materials of Section XI: clothing and clothing accessories (e.g. garments shawls scarves stockings and socks gloves and collars) blankets and travelling rugs household linen (e.g. bed sheets and table linen) and furnishing articles (e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is liable to rejection under Rule 12 read with Rule 3(1), then in terms of Rule 3(4), the value is to be determined under Rules 4 to 9 sequentially. Following the ratio of law laid down in M/s. S.S Impex case supra, we find that no plausible reason is made out by the revenue in this appeal, for the revaluation of the assessed goods. Nonetheless, a look at the legal stipulations may be set out for greater clarity. The DRI, sought to reject the declared value by resorting to Rule 12 of Customs Valuation Rules, 2007 (CVR), quoted below: Rule 12 -Rejection of declared value.- (1) When the proper officer has reason to doubt the truth or accuracy of the value declared in relation to any imported goods, he may ask the importer of such goods to furnish further information including documents or other evidence and if, after receiving such further information, or in the absence of a response of such importer, the proper officer still has reasonable doubt about the truth or accuracy of the value so declared, it shall be deemed that the transaction value of such imported goods cannot be determined under the provisions of Sub-Rule (1) of Rule 3. (2) At the request of an importer, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the (erstwhile) Rule 8 of the Customs Valuation Rules was correctly applicable in case of subject goods for which there was no uniform standard. Therefore, based on market enquiries undertaken, the assessing officer re-determined the value of such goods. We find no qualms with such valuation arrived at. We also note that this methodology has been upheld and approved of in a series of cases, by this Tribunal viz.: i. Commissioner of Customs (Port), Kolkata vs. M/s Devraj Trading Company, Customs Appeal No.75359 of 2019. ii. Commissioner of Customs (Port), Kolkata vs. M/s. N.N. Traders, Customs Appeal No.75363 75366 of 2019. iii. Commissioner of Customs (Port), Kolkata vs. M/s Durga Enterprises, Customs Appeal No.78014 of 2018. iv. Commissioner of Customs (Port), Kolkata vs. M/s Prakash Overseas, Customs Appeal No.75171-72 of 2015. v. Commissioner of Customs (Port), Kolkata vs. M/s R.D. Impex, M/s Krishna Enterprises and M/s Prince International, Customs Appeal Nos.75830 75849-55 of 2016. vi. Commissioner of Customs (Port), Kolkata vs. M/s R.K. International, Customs Appeal No.76294 of 2016. vii. Commissioner of Customs (Port), Kolkata vs. M/s Sw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms, I hold that the value of these goods should be assessed @ 0.60 USD per Kg. The Commissioner has thus, based on the above findings, calculated the duty as required to be further worked out in Table (XIV) of the order. 14. On the aspect of imposition of penalty and charging of interest we note that the goods have been determined to be old and used garments. These are restricted for the purpose of import and require an import licence for import and clearance. For the purpose and related aspects like lack of a valid licence for import and the excess weight, the adjudicating authority has subjected the importer to appropriate action in law. Thus, he has rightly confiscated the said goods under Section 111(m) of Customs Act, 1962 and also imposed penal liabilities. 15. In fact, on the methodology of examination of the cargo the Tribunal in the case of A. N. Impex referred to earlier in para 7 has observed as: 7.5. .from the Panchnama, SCN and finding of the Ld. Commissioner, nothing specific is revealed as to how many articles have no sign of appreciable wear and how many article have little sign of appreciable wear. The DRI proceeded on the basis that the particular ..... X X X X Extracts X X X X X X X X Extracts X X X X
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