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TMI Blog2024 (12) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... oden handle. The appellants have submitted a certificate of Chartered Engineer Shri O.S.Nagar describing it as digging spade. The notice alleges that as per examination report the goods are found to be Pick Mattock. The notice does not define what a Pick Mattock is and how the revenue comes to a conclusion that it is a Pick Mattock - it is seen that both the Chartered Engineers have opined that the tool is used for digging. CRCL Kandla, in its opinion has not given any name to product. The word Pick Mattock has not been defined anywhere in the proceedings. Shri Nagar, Chartered Engineer in reply to questionnaire had described that the words Digging Spade and Pick Mattock are used interchangeably - The Google defines a spade as a tool that y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t FOB value can be much higher than market value. In these circumstances we do not find any merit in this objection as well. The Impugned ordered is set aside - the appeal is allowed. - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri Amit Ladhdha, Advocate for the Appellant Shri Prashant Tripathi, Superintendent (AR) for the Respondent ORDER These appeal has been filed by M/s. Pensla Steels Private Limited. 2. Learned Counsel for the appellant pointed out that the appellant had filed shipping bill for export of goods has declared as Hand Tools Digging Spade With Handle classifying the same under CTH No. 82011000 and claimed the benefit of DEPB Scheme @ 6% without value cap in a terms of Serial No. 196 Group Code 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wooden handles. Accordingly, there was shortage of 3383 wooden handle and 192 pieces of metal parts. (c) The valuation of the product was incorrect. While revenue alleged that the market value of goods is Rs. 225/- per piece, the appellant had declared the export price as Rs. 402.30 per piece to claim higher DEPB. The show cause notice issued by revenue was confirmed by the lower authority and hence, the appellants are in appeal before the Tribunal. 2.4. Learned Counsel pointed out that the goods are examined by Chartered Engineer Shri O.S.Nagar who has certified that the impugned goods are Digging Spade . The revenue has later sent a questionnaire to Shri Nagar, Chartered Engineer. Shri Nagar in his reply has categorically stated that cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us Expenses like office and administration expenses, exchange difference, Banking charges etc. 15 Total 400 2.7. Learned Counsel pointed out that the issue of classification is matter of interpretation and there cannot be any intention to defraud the exchequer. He further argued that even valuation is arrived at on the basis of cost structure as detailed above. In these circumstances imposition of penalty is a totally unwarranted. 3. Learned AR relies on the impugned order. He produced extracts from Wikipedia showing pictures of Pick Mattock and Digging Spade. He pointed out that they had availed the services of Shri Deepak Shah Chartered Engineer /Government Registered Valuer, who had affirmed, after examining and a piece weighing approxim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue comes to a conclusion that it is a Pick Mattock . 4.1. The Revenue sent a questionnaire to the Shri O.S.Nagar the Chartered Engineer who had given his certificate in favour of appellant. He clarified that the term Digging Spade and Pick Mattock are used interchangeably. He also clarified that he had given his opinion only after examining the goods. 4.2. The sample was also sent to CRCL Kandla who opined that the sample is pointed metallic article without handle and it is composed of metallic steel. Opinion of another Chartered Engineer Shri Deepak Shah was sought by revenue. He described the goods as Pick Mattock used for digging. He also called as Trikam . 4.3. Thus, it is seen that both the Chartered Engineers have opined that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part. The physical counting was not done by the exporters or the CHA as that was not deemed necessary. We find that the declaration made in the documents was based on the order placed by the exporter. Physical counting of 21000 pieces would require opening of all packages. Moreover, it is stated that there was a delay in carting of second truck in the part by two days which necessitated the carting of cargo from the warehouse to open. The pictures of the cargo available in the file show that the goods were loosely packed in bags. In these circumstances the exporter cannot be blamed for some mismatch in quantity. As it is the benefit depends on value of foreign currency earned and not on the number of places exported. 4.6. Now, we examine t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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