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TMI Blog2024 (9) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... lso observed that the Chartered Engineer s report is not conclusive as he suggested for further laboratory test to ascertain its functionality, residual life etc. Accordingly, the adjudicating authority could not have come to the conclusion that the impugned goods are old and used only on the basis of this Chartered Engineer's report, which is inconclusive on the nature of the imported goods in its findings. The evidence available on record does not indicate that the goods imported are old and used. On the contrary, the letter submitted by the appellant indicate that the supplier has categorically stated that the imported goods are new, supplied from the old stock. Unused goods supplied from old stock may look old and obsolete, but for the purpose of import policy, they cannot be called as second hand goods which require an authorization for importation. Accordingly, on the basis of evidences available on record and the decisions cited above, we hold that the goods imported by the appellant in this case cannot be considered as second hand goods which require authorization for import. Thus, there is no violation of EXIM policy warranting confiscation of the goods imported under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AZHAKAN, MEMBER (TECHNICAL) Shri S. C. Ratho, Consultants for the Applicant Shri Subrata Debnath, Authorized Representative for the Respondent ORDER M/s Nishka International LLP (hereinafter referred as the appellant ), has imported a consignment vide Bill of Entry No. 4486127 dated 04-02-2023, and declared the contents as Electronic Components LCD Panels for LCD TV . The said consignment was examined 100% by the shed officers in the presence of DRI officers on 11.02.2023 under Panchanama proceedings. 2. On examination of the goods, the officers were of the view that the goods imported were old and used and imported by the appellant in violation of Foreign Trade Policy. Representative samples were also drawn during examination. 2.1. The appellant had imported two more consignments under Bills of Entry Nos, 4695432 and 4695641, both dated 17-02-2023, with similar declarations. Therefore, both those consignments were also subjected to 100% examination on 24-03- 2023 by shed officers in the presence of DRI officers and the representative of a Customs empanelled Chartered Engineer M/s ELBI Consultancy (India) Pvt. Ltd. On physical examinations, all the goods imported in both the consig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.50,00,000/- was also imposed on the appellant under section 114AA of the Customs Act, 1962. 3.2. Aggrieved against the confirmation of the demands, confiscation of the goods and imposition of redemption fine and penalties, the appellant has filed this appeal. 4. The appellant submits that the report given by the Chartered Engineer appears to be not in consonance with the physical availability of the goods in the consignment. In the examination report, the Chartered Engineer reported that, the date of manufacture is not available on the goods, ignoring the fact that the 19 LCD Panels of Lenovo Brands of 2876 pcs was manufactured on 01.08.2021, which was embossed on it. Besides, the Chartered Engineer s report was not conclusive as he suggested for further laboratory test to ascertain its functionality, residual life etc. 4.1. Regarding rejection of the value declared by them and redetermination of the value, the appellant submits that without any corroborative evidence in support of the value determined, the Chartered Engineer gave the price for 17 Panels @ Rs. 2,000/- for 19 Panels @ Rs. 2,200/- and 20 Panels @ Rs. 2,400/- as against the declared value on the invoice @ USD 5, USD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Kiran Overseas Vs. Commissioner of Customs, reported in 1988(38) E.L.T. 362 (Tribunal), wherein the Tribunal has set aside the order of Commissioner observing that unless there is an express provision in law about the conclusiveness of the report of the expert, one cannot presume the report of the expert as conclusive. The expert opinion is only a relevant piece of evidence and it is ultimately the quasijudicial authorities to adjudge the correctness of the same by application of their mind having regard to the facts and circumstances of each case . An appeal filed against this order was also dismissed by the Hon ble Supreme Court as reported in 1996(88) E.L.T. A187 (S.C.). 4.5. The appellant submits that in this case, the value enhancement has been made solely on the basis of the Chartered Engineer s certificate ignoring the Apex Court s judgement. No evidence has been brought on record to establish that the transaction value between the parties was influenced by any consideration other than commercial, that too when the model of TV panels in question had become obsolete. These facts support the appellant s contention that their purchase price was a fully commercial price. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he mistake of the overseas supplier, which is beyond the control of the appellant, invoking penal clause and imposing penalty on the importer, is not just and proper. 4.9. Regarding imposition of penalty under Section 114AA, the appellant submits that no evidence has been brought out in the order that the appellant used any false and incorrect materials or made any sign or any declaration, statement or document which is false or incorrect, in transaction of his business. Hence, liability for imposing penalty on the importer under section 114AA may not arise. 4.10. The appellant submits that they made a request for re-export of the goods in the beginning of the case on 26.05.2023, but after 10 months in the OIO dated: 13.02.2024, re-export has been ordered, which is not feasible to redeem the goods on payment of harsh redemption fine imposed and huge demurrage accrued. After adjudication of the case, no option to clear the goods on redemption has been given. This tantamount to absolute confiscation since option to redeem is only for re-export purpose. In the case of Mafatlal Industries Ltd. v. U.O.I. 1997 (89) E.L.T. 247 (S.C.) it has been held that absolute confiscation should be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2023 at 1:00:33 AM IST To: [email protected] Dear Sir, I kindly inform that you sir, I explained you about this. Actually we are purchased the all goods from USA and CANADA and then over the goods in my place in UAE actually Our goods manufacturing in USA and CANDA also all are new goods directly Import from USA and CANDA then over the stock in UAE after export to the customer. If our goods any mistake surely you will give you return back and I will provide the other new goods also if any charges I will responsible for that. And to apologies for being so Irresponsible. Again it will never happen like this next time I will give perfect goods according to your demands. Thanks Regards, NitinGulati [email protected] To: [email protected] Sat, Aug 26, 2023 at 1:23 PM 6.2. We observe that the adjudicating authority has not given any finding on the claim made by the appellant that the goods imported are new goods, on the basis of the letter issued by the supplier of the goods. He came to the conclusion that the goods are old and used on the basis of the report given by the Chartered Engineer. For the sake of ready reference the report given by the chartered engineer i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... XIM policy warranting confiscation of the goods imported under the bills of entry referred supra. Accordingly, we set aside the order of confiscation and imposition of redemption fine for violation of foreign policy by the appellant. 7. Regarding valuation of the goods, we observe that the value enhancement has been made by the adjudicating authority solely on the basis of the Chartered Engineer s certificate. There is no evidence brought on record to establish that the transaction value between the parties was influenced by any other consideration. Value may be diminished on account of variety of reasons, such as wear and tear, non-use, obsolescence or the like. Depreciation on account of wear and tear is a well-known concept. So also depreciation on account of obsolescence. Hence as the goods are supplied out of stock lot, a slight variation in value as compared to the new item of similar goods is permissible. 7.1. We find that the Chartered Engineer gave the price for 17 Panels @ Rs. 2,000/- for 19 Panels @ Rs. 2,200/- and 20 Panels @ Rs. 2,400/- as against the declared value on the invoice @ USD 5, USD 6 and USD 7 respectively. We observe that prior to adjudication, the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as compared to the new goods of the same brand and model. Such variation in price in declared price is permissible when it is established that the goods imported are from old stock. In such cases acceptance of the transaction value declared by the appellant as assessable value for the purpose of payment of customs duty is squarely covered by the decision cited above. Thus, we do not find any reason to reject the transaction value declared by the appellant. Accordingly, we hold that the transaction value declared by the appellant is acceptable and we reject the value re-determined by the adjudicating authority in the impugned order. In view of the above discussion, we set aside the differential customs duty confirmed in the impugned order on account of re-determination of the assessable value. Since, the duty re-determined is set aside the question of demanding interest does not arise. 8. Regarding imposition of penalty in the impugned order, we observe that penalty has been imposed on the appellant on account of redetermination of value and on the basis of allegation of mis-declaration. In the instant case, the goods from old stock has been sent on account of the mistake of the ove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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