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TMI Blog2024 (5) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... been mis-classified due to mistake and, therefore, paid the differential customs duty. The principle settled by judicial pronouncements is clear that once the party admits, the same need not be proved by the department. Issue of retraction - The statement was made on 25.03.2021 and the retraction was made vide communication dated 16.04.2021, which is nothing but afterthought and belated action and hence no reliance can be placed thereon. Also no other material has been placed on record to corroborate the fact that the statement were recorded under the exhortation and duress. Duty paid under protest - The statement dated April 16, 2021 that they paid the differential duty amount under protest is just an afterthought and has no evidential value and, therefore, the plea needs to be rejected. Penalty u/s 112 - No show cause notice has been issued proposing the demand of differential duty or the penalty. On adjudication, the penalty was imposed only under section 114A of the Act and there was no reference at all to the provisions of section 112 of the Act. Once the appellant has challenged the said order in original, it was incumbent upon the appellate authority to decide the issues und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as given to the appellant to redeem the same on payment of redemption fine of Rs. 50,000/- in terms of provisions of Section 125 of the Act. The adjudicating authority imposed the penalty of Rs. 2,03,701/- under the provisions of section 114A of the Act. In appeal, the Commissioner (Appeals) upheld that the impugned consignment was mis-classified and were, therefore, liable for confiscation, modified the order of penalty by setting aside the penalty under section 114A and imposing penalty for a sum of Rs. 20,370/- under section 112 of the Act, relying on the decision of this Tribunal in the case of Nagpur International 2020 (371) ELT 769 hence the present appeal before this Tribunal. 4. We have heard Shri Akhil Krishan Maggu, learned counsel for the appellant and Shri Rohit Issar, learned authorised representative appearing for the department. 5. Learned counsel for the appellant submitted that re-classification has been done on the basis of visual inspection and no evidence have been produced by the department which could confirm the proposed classification. He submitted that the onus is on the department to prove the classification, which they have failed to do so. Learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to the statement of Shri Jaskaran Singh (partner) in the form of question/ answer. The relevant contents of the same are quoted below: Q8. From visual inspection of the imported goods, it appears that the goods made of Aluminum and laminated with a thin layer of copper and the most suitable classification of this product is 76061200. Major portion of material used in the goods is Aluminum. What is the composition of the product and what you want to say? Ans. I state that right now we have not composition of the goods. I agree that major material used in these goods is aluminum and the goods are made of Aluminum, Copper, insulated material pet film of plastic. I state that we don't know exact percentage of aluminum used in this product however on visual inspection it appears that part of raw material used in this product is more than 70% Q9. You are being shown the Customs Tariff Act CTH 7410 and nowhere item aluminum based Copper Clad Laminates have been mentioned in this CTH. what you want to say? Ans. I state that I have seen the Customs Tariff Act CTH 7410 and I nowhere find out the And product described as aluminum based Copper Clad Laminates. Further, if on the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws: ....... Once it is an admitted position by the party itself, that these are parts of a Chilling Plant and the concerned party does not even dispute that they have no independent use, there is no need for the department to prove the same. It is a basic and settled law what is admitted need not be proved . 10. Further, this Tribunal in the case of Jai Shiv Trading Company vide F. O. dated 20.07.2017 has observed as follows : The appellant has also challenged that valuation adopted by the customs authorities. From record, it is seen that such redetermination of value has been carried out in terms of Rule 7 of the Customs Valuation Rules which provides for determination of value on the basis of the price of identical or similar imported goods in India. It is further seen from records, that the proprietor of the appellant, Sh. Jayshiv, was shown the market enquiry report at the time of recording his statement on 08.07.2008. Further, in the statement he has voluntarily accepted the increased valuation of the imported goods. It is settled position of law that once the importer has admitted the re-determination of value on record and has accepted the method of such valuation, he cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Hanuman Prasad where learned Single Member dealt with the issue of retraction in similar circumstances and observed that the effect of retraction of the statement does not by itself reflect upon the evidential value of the statement which have been retracted under section 108 of the Act. Also that no other material has been placed on record to corroborate the fact that the statement were recorded under the exhortation and duress. Referred to the decision of the Apex Court in Surjeet Singh Chabra 1997 (89) ELT 646 (SC) and in the case of K I Pavunny vs. Assistant Collector(Hq) CEX Collectorate 1997 (90) ELT 241 (SC) , where it has been held that if the statements are recorded, Court is required to examine whether it is obtained by pressure or duress or by promise and whether the confession is truthful or not and if found to be voluntary, the same is to be relied upon. In other words, it has been laid down that mere fact of retraction of the confessional statement by itself is not sufficient and if on further examination nothing is found to hold the statement having been given under the exhortation or duress, the same can be made the basis for holding the appellant guilt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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