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2019 (2) TMI 1572 - AT - CustomsSeizure and adjudication of the live consignment imported - mis-declaration the consignment imported - demand of duty of past consignments (import) also - Section 17 of the Customs Act - extended period u/s 28 of CA - Held that:- It is not disputed that the Custom officer was in the process of examination of the container on 04.05.2013, after opening the container. Thereafter on receipt of the information that the DRI would be examining the consignment the container was sealed again. We find that for sealing of the container, there is no record. Ld. Advocate strenuously argued that the sealing of the consignment without punchnama was improper this ground itself is a sufficient to hold that there is a complete disregard to Customs Act and the Rules made thereunder. This in itself is a sufficient ground to treat the process of examination to be illegal and not permissible under Customs Act. The appellant has declared the description of the imported goods and their classification based on the documents supplied by the overseas supplier. The CHA, who was authorised to effect Customs clearance made available those documents, and was asked by the appellant to classify imported goods as per the aforesaid documents considering the nature and description of the goods. Therefore, if cannot be held that there was a deliberate attempt on their behalf to mis-declare the imported consignment. In fact, in past the Customs itself has cleared similar consignments as per the declaration given by the appellant at the strength of the export invoice as per the description of the goods therein. Revenue has not been able to prove that the appellant has paid any extra amount to the overseas buyer other than whatever is mentioned in the export invoice through banking channel. Regarding the consignment which has been imported by the appellant in past, it was argued that those imports have been under section 17 of the Customs Act without resorting to any provisional assessment. The Department has also not challenged the assessment order, and which had become final under Section 17 of the Act during the relevant period. The demand pertaining to past period is not sustainable. Also, the demand for the past clearance is proposed to be made against finally assessed bills of entry, which is not permissible. The invocation of Section 28 of Customs Act is not attracted as mis-declaration is not proved in these cases. Demand pertaining to live consignment - Held that:- As far as demand pertaining to live consignment is concerned, the same has been accepted, we without going into further details uphold the same but without any penalty as there is no deliberate mis-declaration as part of the appellant. Penalty on Director of the Company - Held that:- There is no deliberate attempt of mis-declaration on part of Director of the Company and the penalty imposed on them is set aside. The impugned order is set aside but for the demand relating to live consignment (B/E No. 2293952 Dated 31.05.2012) for differential value on account of change in classification of products - Interest and penalty imposed on the two appellants are also set aside - appeal disposed off.
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