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TMI Blog2025 (4) TMI 1199X X X X Extracts X X X X X X X X Extracts X X X X ..... 39; vide Bills of Entry No. 3854651 dated 3.11.2017 and No. 3951777dated 10.11.2017. The appellant had also imported cargo declared as Proof Machined Low ALLOY Steel spool Conf and 'production test coupon conf vide Bill of Entry No. 4041182 dated 17.11.2017. The B/Es have been assessed at first through RMS and the same had been recalled on request of their letter dated 28.11.2017 and the cargo were examined under the supervision of Docks Examination Section in the presence of authorized person of Custom Broker. The goods were found to be as per declaration in the Bills of Entry but total weight of the cargo was found to excess as comparision to that mentioned in the above said Bills of Entry. 1.1 The Importer vide their letter dated 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1962 read with the provisions of Section 111(m) of the Customs Act, 1962. The adjudicating authority vide O-I-O No. MCH/ADC/GPM/100/2017-18 dated 19.12.2017 ordered confiscation of mis-declared goods and gave an option to the importer to redeem the same on payment of redemption fine of Rs.60,000/- under Section 125 of Customs Act, 1962 and imposed penalty of Rs.18,000/- on the importer under Section 112(a) of Customs Act, 1962. 1.3 Being aggrieved, the appellant filed appeals before the Commissioner (Appeals) who had vide impugned order dt.16.10.2018 also confirmed the R.F. and penalty imposed by the Adjudicating Authority. Against the said OIA applicant has filed this appeal. 2. Learned Advocate for the appellants pleads with the help ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this regard was placed on:- - Symrise Pvt. Ltd. v. Commissioner of Customs- 2009 (248) E.L.T. 418 (Tri.-Chennai) - VST Industries Ltd. v. CC, Mumbai- 2007 (207) E.L.T. 513 * Impugned goods are not liable for confiscation and consequently no redemption fine is imposable. Reliance in this regard was placed on:- - Bhagyanagar Metals Ltd. v. Commissioner of C. Ex., Hyderabad-II-2016 (333) E.L.T. 395 (Tri.-LB) - Hindalco Industries Ltd. v. Commissioner of Customs, Ahmedabad- 2024 (389) E.L.T. 224 (Tri.-Ahmd.) 3. Learned AR on the other hand, reiterating the findings of the lower authority, pleaded that the goods under the Customs Tariff, have to be declared in Kg but appellant had showed than in number of pieces/ units and therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule (2), that the value of the imported goods is required to be determined by proceeding sequentially through Rules 4 to 9. As noticed above, the importer had accepted the enhanced value and there was, therefore, no necessity for the assessing officer to determine the value in the manner provided for in Rules 4 to 9 of the Valuation Rules sequentially." 4. In rejoinder, learned Advocate places reliance on the decision of High Court New Delhi in the matter of Principal Commissioner of Customs (Import & General) Vs. CISCO Systems India Pvt. Ltd 2023 ACR 26 wherein, Hon'ble Delhi High Court, vide its order dated 25.01.2023, held that filing of an appeal by an aggrieved person against enhancement of duty, will itself be considered as protest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bvious that the assessee does not accept the said levy and, payment of the same would necessarily have to be construed as payment under protest. 14. The Learned Tribunal had relied on the Constitution Bench decision of the Supreme Court in the case of Mafatlal Industries Ltd. v. Union of India (supra) and referred to the following passage from the said decision : "83. It is then pointed out by the learned Counsel for the petitioners-appellants that if the above interpretation is placed upon amended Section 118, a curious consequence will follow. It is submitted that a claim for refund has to be filed within six months from the relevant date according to Section 11B and the expression "relevant date" has been defined in clause (B) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upplied ) 15. In view of the authoritative decision of the Supreme Court in Mafatlal Industries Ltd. v. Union of India (supra), the question whether payment of duty while appealing its imposition, is required to be construed as payment under protest, is no longer res integra. Although the said decision was rendered in the context of Section 11B of the Central Excise Act, 1944, the second proviso to Section 11B of the Central Excise Act, 1944 is pari material to second proviso of Section 27(1) of the Customs Act. 16. We concur with the decision of the Learned Tribunal that the duty paid by the respondent on the enhanced value of the goods is required to be accepted as duty paid under protest." 5. Therefore, we agree with the Advocate on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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