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TMI Blog2024 (8) TMI 1112X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms (Preventive), New Delhi examined the goods under a Panchnama on 10.11.2016 and found them as declared but excess quantity of 1629 square meters of non-textured fabric was found. The appellant agreed that the quantity found was in excess of the declaration and paid duty on the excess quantity of fabric. The appellant is not contesting the duty paid on this excess quantity of goods found even before us. 5. It also appeared to the officers that the suction pumps were under-valued. The appellant was summoned who, in his statement given on 22.11.2016, admitted that the pumps were declared without any specification or brand name and they were of Chinese brand Dertin and were of 75 Gallons Per Day [GDP] capacity. The appellant agreed to the re-determined value proposed by the officer and also agreed to pay the differential duty. The very next day, i.e.,on 23.11.2016, the appellant retracted the statement to the extent of valuation of suction pumps and asserted that National Import Database [NIDB] data cannot be made the basis for valuation and goods should be valued on transaction value declared in the Bill of Entry. He also requested for the goods to be released provisionally. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence Act, 1872 reads as follows: 102. On whom burden of proof lies: The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 12. In this case, the appellant filed the Bill of Entry making some declaration regarding the nature of the goods and their value. If Revenue asserts that the declarations are not correct, it has to produce evidence in support; otherwise it would fail. 13. Revenue produced evidence to assert that the pumps were of 100GPD in the form of a certificate of Shri R.K. Aggarwal, Chartered Engineer. After examining the goods, Shri Aggarwal, submitted his certificate dated 29.12.2016 and his observations in which are as follows: "After carefully examining and testing of the representative sample as mentioned above, I observed that this is a 'Mini Booster Pump' for use in RO and the same may also be called 'Suction Pump for RO Water' or 'Diaphragm Pump', mainly for use in the RO system & may also be used in pesticide spraying etc., just to boost pressure and not suitable for lifting at high altitude levels. The other technical parameters of the pump: Operating Voltage: 24V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und to reject the transaction value of the pumps. The value of the pumps declared in the Bill of Entry should therefore, have been accepted. 16. Insofar as the excess quantity of the non-textured fabric is concerned, the appellant does not dispute that excess quantity was found and that duty has to be paid on the excess quantity. It has already paid the duty. 17. According to the learned counsel for the appellant, duty also could not have been confirmed under section 28(4) because the process of assessment was not even completed. This submission also deserves to be accepted. When goods are imported, the importer self-assesses duty under section 17(1) and the proper officer can re-assess the duty under section 17(4) and if he does so, unless the importer agrees to the re-assessed duty, he has to pass a Speaking Order within 15 days. Both self-assessment and the re-assessment by the officer fall under the definition of 'assessment' under section 2(2). These sections read as follows: Section 2 Definitions: **** (2) 'assessment' means determination of the dutiability of any goods and the amount of duty, tax, cess or any other sum so payable, if any, under this Act or under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 47 which reads as follows: 47. Clearance of goods for home consumption.- (1) Where the proper officer is satisfied that any goods entered for home consumption are not prohibited goods and the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home consumption: ****** 19. Once the proper officer makes an order permitting clearance of goods for home consumption under section 47, the goods cease to be imported goods [section 2(25)] and dutiable goods[section 2(14)], and the importer ceases to be importer [section 2(26)].These sections read as follows: Section 2 Definitions: (14) 'dutiable goods' means any goods which are chargeable to duty and on which duty has not been paid; (25) 'imported goods' means any goods brought into India from a place outside India but does not include goods which have been cleared for home consumption; (26) 'importer', in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner, beneficial owneror any person holdin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... until then, the assessment is still open and if any discrepancies are found or any adjustments have to be made, they can be done by the proper officer through re-assessment under section 17. 23. In this case, the appellant filed the Bill of Entry and selfassessed duty and before it could be re-assessed by the proper officer, the officers of the Commissioner of Customs (Preventive) intervened and the Additional Commissioner has done this reassessment instead of allowing the proper officer to do it. Thus, the demand which he confirmed is only a re-assessment under section 17 and is not a demand under section 28. Consequently, section 28AA and section 114A which are linked to section 28 do not apply to this case. This is simply a case of assessment of the goods where excess quantity of one of the goods was found on examination on which the appellant agreed and paid the excess duty. The proper officer could have done it in due course but the Additional Commissioner of Customs (Preventive) took over and did it. 24. Insofar as the confiscation of the goods under Section 111 (l) and (m) and redemption fine are concerned, we find that Section 111 makes certain goods liable for confiscati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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