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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 ..... of the Examination Committee appears to be legal and proper. The appeal is being proposed against the rest of the noticeses." There are no separate appeals filed as required in terms of Rule 6A of the CESTAT (Procedure) Rules, 1982 in respect of the other noticees, 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/APP20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signments covered under Bill of Entry No. (A) 422965 dt. 29.07.08; and (B) 421013 dt. 18.07.08 declared to contain 'old and worn clothing and worn articles' and reported by the 'Examination Committee', initially examining 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble wear, assigning any reason or in absence of any evidence. We also find that in the show cause notice in para 53 at page 9 it is recorded that "Moreover, most of the articles of consignment having no sign 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 heading is with a caveat and reads as under: "HEADING 63.09 - WORN CLOTHING AND OTHER WORN ARTICLES. In order to be classified in this heading the articles of which a limitative list 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. gar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termining the value of imported consignment, only after rejection of the declared value on proper grounds. If the proper officer finds that the declared value 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter of M/s B.K. Spinning Mills (P) Ltd. -vs- Collector of Customs, Cochin 2000 (117) ELT 604 (Tr.) wherein it was held that 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absence of any reliable and relevant evidence of value for the material period for such items, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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