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2012 (10) TMI 385 - CESTAT, NEW DELHIDemand of duty – import of goods from Nepal - importer had claimed exemption under Notification 40/2002-Cus., - goods were intercepted by Directorate of Revenue Intelligence and seized under the belief that the importer had mis-declared the goods in the Bill of Entry for claiming the exemption under Notification 40/2002-Cus., - alleged that exemption under Notification 40/2002-Cus. was meant for goods of Napalese origin; the goods imported were pure Calcium Di-Pantothenate, classifiable under Customs Tariff Heading 29.36 and the goods were imported from Germany – Held that:- Case of the department is proved based on test reports - When the goods were available for testing and were tested and found to be different from what was declared, the appellant was just trying to avoid coming before the department - His agent was accepting that the certificate was forged - department did not make enquiries with the Nepal Chamber of Commerce which is stated to have issued the certificate is not a major flaw in investigation - no need for any joint visit by the Indian Customs and Napalese Customs to the factory of the exporter to find out the correctness of the certificate issued Whether goods could have been confiscated absolutely – alleged that goods were prohibited goods and liable to confiscation under 111(d) of the Customs Act – Held that:- Goods in question is not of a type which causes injury to public health or can cause damage or threat to the society if released into Indian market - goods have been sold by the Customs in Indian market - goods should have been released to the importer against a redemption fine rather than the customs department selling the goods after absolute confiscation. Value of the goods - Appellants have raised the objection that the basis for such assessment is not disclosed in the SCN or in the order-in-original - When the description was wrong the value declared cannot be accepted – Penalty – Held that:- Penalty imposed on the firm is about 45% of the assessed value of seized goods - Considering that goods were absolutely confiscated, and the relief from such order is being granted only after more than 8 years, and thus the appellant has suffered severe penal consequence we reduce the penalty
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