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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 ..... rect by the Revenue either through the certificate of the Chartered Engineer or through any other evidence. Consequently, there is no ground to reject the transaction value of the pumps. The value of the pumps declared in the Bill of Entry should therefore, have been accepted. Excess quantity of the non-textured fabric - HELD THAT:- 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. Jurisdiction to make re-assessment - HELD THAT:- It is clear that section 28 can be invoked only after the goods have been cleared for home consumption because 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. 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 29.11.2016 provisional release was allowed with the condition that the appellant pays 100% of the duty demanded through demand draft or a submit a bank guarantee for the amount. The appellant approached the High Court of Delhi through a Writ Petition and by order dated 18.01.2017 the High Court modified the conditions for provisional rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 DC, Amp: 0.9 A, Suction Height 2 Mtr. Normal Working Pressure: 70 psi and by looking at inlet-outlet sizes (Approx. Inlet size 7/16 and outlet size 3/8 size) and other construction and weight of the pump i.e. 2.070 Kg (as weighed), this seems to be suitable for 100 GPD capacity RO Membrane system.It is to be reiterated that this type of pump is not meant to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Customs Tariff Act, 1975 (51 of 1975) (hereinafter referred to as the Customs Tariff Act) or under any other law for the time being in force, with reference to (a) the tariff classification of such goods as determined in accordance with the provisions of the Customs Tariff Act; (b) the value of such goods as determined in accordance with the provisions of this Act and the Customs Tari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 holding himself out to be the importer; 20. Thereafter, there can be no assessment of duty. However, the assessment already made can be modified either on appeal by either party to the Commissioner (Appeals) or through the process under section 28. 21. The issue of SCN and determination of duty not levied, not paid or short levied or short paid, is in the nature of reopening of the assessment which was already completed by the proper officer. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 confiscation but does not mandate such confiscation. It is for the adjudicating authority to exercise his discretion and see if goods need to be confiscated in the facts of the case or not. In this case since the only violation is of import of excess quantity of one of the goods, we find no sufficient ground to confiscate the goods. Therefore, the confiscation of the goods and the redemption fine also deserve to be set aside. 25. In view of the above, we partly allow the appeal and m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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