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TMI Blog2002 (4) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... rter to be of Rs. 85,670/-. The bill of entry that was filed for their clearance shows that some or all the goods were subjected to some adjudication, as a result of which they were permitted to be cleared on payment of fine. This information is available from the rubber stamp that indicates the result of adjudication. A copy of the adjudication order which would have been passed was not made available to us by the appellant despite our request. The goods were cleared on payment of duty on the value declared by the importer. Subsequently, the Directorate of Revenue Intelligence investigated the matter, seized the goods in Gujarat and issued a notice which lead to the adjudication. The notice alleged that the goods were in fact respirators and earplugs, based on the statement of Jayant Maru, a partner of this firm, alleged gross undervaluation of goods, proposing enhancement of the value of the goods to Rs. 27.88 lakhs approx. Confiscation of the goods was proposed under Clause (m) of Section 111 of the Act. The notice also noted that the respirator is correctly classifiable under Heading 63.07 of the tariff, and not, as claimed, under Heading 39.26. Confiscation of the mould, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntry indicates that bag nos. 41, 43, 43 (sic), 44, 45, 80, 81 82 are "nothing but consumer goods" and they are mouth covers for dust protection fitted with elastic bands. Balance contents are either with or without elastic bands." It is therefore, clear that the respirators (referred to as mouth covers for dust protection) which were contained in eight bags referred to in the examination report were subjected to adjudication on the ground that they were consumer goods. The same goods have been ordered confiscation in the impugned order for the same reason. There is, therefore, a point that the goods have been subjected to adjudication twice. This is not permissible in law. Since the goods had already been subjected to confiscation and release thereof, they could not be held liable for confiscation once again. This position will hold true with regard to confiscation ordered under Clause (m) of Section 111 of the Act. The judgment of the Supreme Court in Mohan Meakin Ltd. v. CCE - 2000 (115) E.L.T. 3 is authority for this proposition. The Court said in paragraph 6 of the judgment : "In the instant case, it is an admitted fact that after issuing a notice as contemplated under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trashed or given away for use outside USA. It further explained "In the past we have also given these products to other countries like Mexico, Columbia etc. Enclosed documents shows these approval." The documents enclosed to this certificate contain the record of disposition by the material review board of this company to give away consignment of respirators and ear plugs in one case as a charitable contribution for the Guadalaraja (in Mexico) explosion tragedy through Red Cross, and in another case to "give away the respirators for use in India." Thus, it is clear that the goods in question were by no means incapable of use. Respirators and earplugs could not be put to use in the rescue work following the Mexican tragedy, unless they were capable of being so used. Similarly, the manufacturer himself has specifically indicated that the other consignment of respirators for use in India. It is thus clear that the goods were capable of being used and intended to be put to use as earplugs. In other words, they might have been sub-standard in the U.S.A. but were identifiable as earplugs and capable of use as such. It is not as if they were incapable of such use, and they could only be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d any money to the manufacturer. In effect, therefore the goods have been supplied free of cost and the provisions of Rule 4 will not apply. Jayant Maru, in his statement dated 8-9-1992 said that the correct cif value of earplug would be around 6.99 cents i.e. US$ 0.69 per plug. He has confirmed this in his statement of 14-9-1992 where he has said that he has purchased the earplug at US $ 138 per 2000 pairs. Maru has affirmed an affidavit dated 22-9-1992 before a notary retracting the admission made on the ground that they were obtained by threat or assault. There is no explanation for the delay of 15 days with regard to the first statement and 8 days with regard to the second statement. It is therefore not possible to accept that the value that has been applied is incorrect. It is therefore not possible to accept that the admissions made in his statement were not true or voluntary. This being the position, confiscation of the goods under Clause (m) of Section 111 has also to be confirmed. It is clear that the goods were misdeclared both regard to their identity and their value deliberately solely in order to avoid their liability to confiscation and to pay duty. We have noted that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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