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TMI Blog2024 (4) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... ign supplier. Thus, it can be seen that the importer had in fact declared Assessable Value in excess of the value of goods actually received by US $ 20,000/- as a result of a mistake committed by the foreign supplier. In this background, we do not think that there was any malafides on the part of the importer. Following the decision in BANSAL INDUSTRIES [ 2004 (1) TMI 250 - CESTAT, CHENNAI] , we do not find that there is any merit in invoking Section 111 and 112 in the instant case. Consequently, the confiscation of goods, imposition of redemption find and imposition of penalty u/s 112 cannot be sustained and the same is set aside. As regard, revision of Assessable Value for one machine from US $ 39,000/- to US $ 38,000/-, the said aspect h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s an advertent mistake done by the foreign supplier and the appellant had no knowledge about this discrepancy. He pointed out that the appellant had filed Bill of Entry for two machines at US$39,000/- each and another two machines at US$ 59,000/- each based on purchased order. Thus, the appellant had declared Assessable Value on higher side to the extent of US$ 20,000/- for the 4 machines as can be seen from the table above. 2.2 Learned Counsel pointed out that they had taken up the issue with the foreign supplier and the foreign suppler admitted the inadvertent mistake at their end and consequently offered a discount of US$ 1,000/- to the appellant as compensation for the third machine sent by mistake. As a consequence, the appellant sough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (USD) Declared in B/E Actual Quantity Shipped by Overseas Exporter Value of goods actually recieved 1. Electric Control Round Steel Pipe Machine having size of 12-63 MM and T:03.-3.0 MM 2 39,000/- 3 39,000/- 2. Electric Control Round Steel Pipe Polishing Machine having size of 51-133 MM and T: 03.-3.0 MM 2 59,000/- 1 59,000/- Total 4 196000/- 4 176000/- The issues to be decided are as under:- 1. If there was a misdeclaration on the part of the importer and if the provisions of Section 111 (b) invoked to confiscate the goods 2. Whether, the Assessable Value for the third machines can be revised from 39,000/- to 38,000/- on account of the compensation paid by the foreign supplier. 4.1 We find that the it is undisputed fact that the importer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ets waste which were not ordered by them. It has also not been shown by Revenue that there was any flow back of funds for the purpose of tin sheets waste. The valuation of said goods was enhanced subsequently and for which duty has already been paid. We notice that in the like circumstances, the Tribunal in the case of Vardhman Sales Agency v. CC, New Delhi (supra) set aside the order of confiscation and imposition of fine and penalty solely on the ground that the party was not aware of the goods which had been mixed up in the consignment. The findings recorded at para 6 7 by the Tribunal as in the light of judgment rendered in Allen Bradley India, 1992 (58) E.L.T. 268 , Wooltex Associates - 1998 (99) E.L.T. 245 , Siris Aqua Ltd. - 2000 (11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me by learned JDR. The fact that the appellants paid duty under Tariff Sub-heading 7601.20 cannot in my view make any dent in the question whether the party misdeclared the goods or not. The documents including the correspondence between the appellants and the foreign supplier, placed before the adjudicating authority, ought to have brought home to that authority the fact that the declaration of the goods in the Bill of Entry was based on the documents, which accompanied the shipment, and on nothing else. There was no material before the adjudicating authority to suspect the bona fides of the declaration of the goods as given in the Bill of Entry. In such facts and circumstances, there is no warrant for a finding of misdeclaration, let alo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at of Grace Enterprises v. CCE CC, Nagpur (supra), they would be entitled to claim the benefit of redemption fine being set aside. We so order accordingly. Likewise, the order of imposition of penalty is set aside as no penalty is required to be imposed when Revenue is not able to establish that appellant had acted deliberately with mala fide intention to evade duty. In this background, we do not find that there is any merit in invoking Section 111 and 112 in the instant case. Consequently, the confiscation of goods, imposition of redemption find and imposition of penalty under Section 112 cannot be sustained and the same is set aside. 5. As regard, revision of Assessable Value for one machine from US $ 39,000/- to US $ 38,000/-, the said a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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