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TMI Blog2004 (6) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... cting the declared value, he assessed that Marble Block at US $ 305 PMT invoking the provisions of Rule 6 of the Customs Valuation Rules. He further ordered confiscation of the goods under Section 111(d) (m) of the Customs Act. A redemption fine of Rs. 11,35,000/- in respect of the goods covered under show cause notice dated 5-2-2003 and Rs. 29,83,000/- in respect of the Marble Block covered under show cause notice dated 15-7-2002, was imposed. Apart from the above, a penalty of Rs. 2,50,000/- and Rs. 6,00,000/- respectively was also imposed under Section 112(a) of the Customs Act. 3. It is contended on behalf of the importer-appellant that the Commissioner has erred both on the issue of classification as well as on valuation. According to the appellant, Marble Blocks at the quarry stage are covered under Chapter 25 of HSN. Referring to Note under Chapter 68, it was submitted that when various products coming under Chapter 25 are further processed than by mere shaping into blocks or slabs or sheets by splitting, roughly cutting or squaring the goods would come under Chapter 68. The impugned products, according to the appellant are worked upon after the quarry stage inasmuch as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her criteria it is not permissible to reject the transaction value declared on the basis of the value of marbles cleared under different bills of entry. 5. It was further contended on behalf of the appellants that redemption fine to the extent of 50% and penalty at 10% of the loaded value is unjustified. It is submitted that in a number of similar cases redemption fine imposed by this Tribunal was at 20% and penalty not exceeding 5%. 6. Learned Departmental Representative submitted that the Commissioner has correctly classified Marble Blocks under Heading 2515.12. The Marble Blocks imported by the appellant cannot be treated as polished Marble Blocks as known in the market. According to the Revenue Polishing of one side of the Marble Blocks has been done with a view to circumvent the restriction imposed in the EXIM Policy on the import of rough marble block. In order to come under Heading 68.02 the Marble Blocks should have been further worked. It is also submitted that enhancement of value is fully justified in this case and that no interference is called for in the quantum of redemption fine and penalty. 7. We first deal with the issue relating to classification. The relev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are not able to accept this contention. HSN Heading 25.15 reads as follows : "25.15 MARBLE, TRAVERTINE, ECAUSSINE AND OTHER CALCAREOUS MONUMENTAL OR BUILDING STONE OF AN APPARENT SPECIFIC GRAVITY OF 2.5 OR MORE, AND ALABASTER, WHETHER OR NOT ROUGHLY TRIMMED OR MERELY CUT, BY SAWING OR OTHERWISE, INTO BLOCKS OR SLABS OF A RECTANGULAR (INCLUDING SQUARE) SHAPE - Marble and travertine : 2515.11 - Crude or roughly trimmed 2515.12 - Merely cut by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape 2515.20 - Ecaussine and other calcareous monumental or building stone : alabaster". Explanatory Notes under 2515, relevant for our purpose, reads as follows : "The heading is restricted to the stones specified, presented in the mass or roughly trimmed or merely cut, by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape. In the form of granules, chippings or powder, they fall in heading 25.17. Blocks etc. which have been further worked i.e. bossed, dressed with the pick, bushing h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and fenders; sinks, troughs, fountain basins; balls for crushing mills; flower pots; columns, bases and capitals for columns; statues, statuettes, pedestals; high or low reliefs; crosses; figures of animals; bowls, vases, cups; cachou boxes; writing sets; ashtrays; paper weights; artificial fruit and foliage, etc. Ornamental goods of stone combined with other materials may be classified as jewellery or imitation jewellery, or as goldsmiths' or silversmiths' wares (see the Explanatory Note to Chapter 71); other ornamental goods essentially of stone are, in general, classified in this heading". 10. A reading of the above Note would make it clear that to come under 68.02 monumental or building stone the roughly cut stone had to undergo further working. Different examples given therein would give an idea as to the nature of the working that is required for being brought under Heading 6802. We are of the view that the rough Marble Blocks imported by the appellant will not qualify to travel out of Heading 2515 and find place in Chapter 6802 by mere polishing of one side of the block. We, therefore, find no hesitation to hold that the Commissioner was fully justified in classifying th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how cause notice nor any material placed by the revenue before the Commissioner that they were of similar quality. The Commissioner himself points out that Department has no expertise to go into the quality of the Marble Blocks imported and therefore they have adopted the procedure classifying the goods on the basis of country of origin and contemporaneous import. According to us, the above test may not be fully incorrect. The quality of the Marble Blocks quarried from different places even from the same country may vary. It is for the department to adopt a legally acceptable procedure for assessing the quality and value of the Marble Blocks imported. With the available modern technology it will not be difficult for the Department to get expert opinion on this aspects. It should be the serious concern of the department to equip itself with suitable methodology to assess the quality and value of the rough Marble Blocks imported in large quantities in violation of EXIM Policy as has come out from the submissions made in this case itself. In the absence of a satisfactory basis to make comparison between the goods imported under different Bills of Entry, we are of the view that the tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17-5-2002 [2002 (150) E.L.T. 667 (T)] and contended that in all these cases the Tribunal had imposed only a redemption of 20% and penalty of 5% of the CIF value determined and therefore the redemption fine and penalty imposed by the Commissioner are to be reduced. While the learned Member (J) accepted the contention, the learned Member (T) differed. It had come out in the facts of the above case itself that the importer therein had repeatedly made imports without licence. Redemption fine imposed by the adjudicating authority in that case was 48% of the value determined. It was observed that the profit margin would come to 52%. Therefore, the quantum of redemption fine and penalty was upheld. The Third Member to whom the matter was referred agreed with the view taken by the Member (Technical). Ultimately the appellant took up the matter by a writ petition before the Bombay High Court. The above writ petition was dismissed by the Hon'ble High Court on 22-1-2004 [2004 (166) E.L.T. 318 (Bom.)] upholding the view taken by the majority in the order of the Tribunal. These proceedings would also show that import of rough Marble Blocks required specific licence. We do not find any merit in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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