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2019 (12) TMI 19 - AT - CustomsLevy of penalty - mis-declaration made by the exporter - goods remained as unclaimed for almost two years - Confiscation - imposition of redemption fine and penalty - mis-declaration of imported goods - goods lying abandoned in customs custody - appellant submitted that owing to mis-declaration made by the exporter, appellant had neither released the import documents from the bank upon payment nor filed bills of entry for release of goods but penalty has been imposed on it - HELD THAT:- After alert was issued by the CIU on 03.11.2008, the goods in question was lying abandoned in the Customs custody up to 18th June, 2010 till the request for amendment was made by the Shipping Line. Except the statement of the proprietor of the appellant firm and Managing Director of the intended importer M/s Diamond Mink Blankets Ltd. recorded under Section 108 of the Customs Act, other documentary evidence on record is available to substantiate that appellant was earlier engaged in mis-declaration or undervalued imported goods and not a single reference like bill of entry number is made to that effect that would provide any detail concerning involvement of appellant in previous occasions. It appears to be a self-exculpatory statement given under Section 108 of the Customs Act, but no materials evidence on record has been placed by the respondent-department that would substantiate involvement of the appellant firm in the alleged transaction except that of the reply of the appellant regarding his source of acquirement of knowledge of discrepancy in the item supplied to the appellant firm - However, suspicion however strong cannot take the place of proof to established guilt of the appellant. Penalty - HELD THAT:- The ground taken in the Order-in-Original and Order-in-Appeal with reference to sub-Section (iii) of Section 30 of the Customs Act, 1962 is of no use to impose penalty on the appellant in view of the fact that import manifest or import report, even if considered as incorrect and done with fraudulent intention since was not established to have been done by the appellant, amendment may only be refused on that ground that would have bearing on the exporter or the intended purchaser and not on the appellant - penalty set aside. The penalty imposed on the appellant is unsustainable and the same is required to be set aside - Since appellant had not placed any claim over the imported goods, no finding is required to be given on the confiscation order and its redemption upon payment of fine at this stage which is not under challenge in the forum by the claimants - appeal allowed in part.
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