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TMI Blog2009 (2) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods for confiscation and the liability of the appellant to penalty u/s 112(a), we remand the matter to the Commissioner for de novo adjudication for (a) re-determination of the value of the goods after getting the same re-examined in presence of the appellant or their representatives, by a Chartered Engineer appointed by the Department and (b) re-determination of the quantum of redemption fine and penalty. - C/167/2008-Cus. - C/102/2009(PB), - Dated:- 24-2-2009 - S/Shri D.N. Panda, Member (J) and Rakesh Kumar, Member (T) REPRESENTED BY : Shri Hemant Bajaj and Ms. Asmita Nayak, Advocates, for the Appellant. Shri L.B. Yadav, SDR, for the Respondent. [Order per : Rakesh Kumar, Member (T)]. - The appellant imported a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present appeal has been filed. 2. Heard both sides. 3. Shri Hemant Bajaj, Advocate and Ms. Asmita Nayak Advocate, the ld. Counsels for the appellant pleaded that as against the declared value of Rs. 40,000 US$ (FOB), the value determined by Chartered Engineer after examination of the goods was found to be Rs. 40,930/- and thus, the declared value is correct, that enhancing the value on the basis of NIDB Data is totally incorrect as no two second hand goods can be identical and the value of the second hand goods is dependent upon their condition, that the imported goods, being old and used capital goods are freely importable and that in this regard reliance is placed on Tribunal's Larger Bench judgement in the case of Atul Commoditie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in view of the judgement of Hon'ble Kerala High Court in Case of CCE, Cochin v. Atul Commodities Ltd. (supra) in which the Tribunal (Larger Bench)'s judgment has been overruled, and of the Tribunal in cases of Sooraj Ghaphics v. CCE, Coimbatore (supra) and Bhagwan Electrocopier (supra), the same have to be treated as old and used goods other than capital goods and hence not freely importable and restricted for import. We therefore uphold the confiscation of the goods under Section 111(d) and liability of the appellant for penalty under Section 112(a). 6. So far as the question of valuation is concerned, we find that while on one hand the Chartered Engineer after examination of the goods prior to their clearance has assessed their val ..... X X X X Extracts X X X X X X X X Extracts X X X X
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