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2005 (12) TMI 160 - AT - CustomsAnti-dumping duty - mis-declaration of quantity and value of the imported ceramic vitreous tiles - Redemption fine and penalty - Customs House Agents - tampering of documents - confiscation - redemption fine - penalty - HELD THAT:- The declared quantity is 4280.32 Sq. metres whereas the quantity actually imported is 8834.32 Sq metres. In respect of the last consignment imported vide Bill of Entry dated 5-4-03 the declared quantity is 5662 80 Sq metres, whereas the actual quantity is 11094.60 Sq. metres. In the last consignment, it was revealed that the tiles actually imported were not of the same dimensions as per the declaration. Shri Anil Kothari also has categorically accepted this position in his statements. Hence, we are of the view that the mis-declaration in respect of quantity as established by the Commissioner in his findings is correct. The adjudicating authority has not given any finding on that invoice. It has not been proved by the Revenue that the bank attested invoice is a fake. Therefore, we are of the view that in respect of the last consignment, a value of 6.5 US $ per Sq metre can be adopted. Anti-dumping duty in terms of Notification No. 73/2003-Cus., has been demanded. It is seen that when these consignments were imported, the provisional Anti-dumping duty imposed on the goods had already lapsed. This Tribunal in the case of Commissioner of Customs Cochin v. Raghav Enterprises in the Final Order 1290-1291/2005, dated 28-7-2005 has held that when the goods are imported after the provisional Anti-dumping duty notification lapses, no Anti-dumping duty can be levied retrospectively in respect of the goods on the basis of the notification levying Anti-dumping duty. The Anti-dumping duty provisionally imposed under Notification No. 50/2002, was effective till 1-11-2003. The consignments were imported during December, 2002 and January-April 2003. During the above period no provisional Anti-dumping duty was leviable. Hence, during this period, Notification No 73/2003 Cus., cannot be applied retrospectively. Hence, the order concerning Anti-dumping duty in Para g of the Order portion in the impugned order is set aside. Since, we have ordered that the value of the imported goods in the last consignment should be taken at 6.5 US $ on the basis of the Bank attested invoice, the assessable value and consequently the duty liability in respect of the goods imported under Bill of Entry dated 5th April 2003 is to be recomputed. Similarly, the MRP of the tiles imported should be recomputed for purposes of calculation of countervailing duty. The finding that the goods imported under the above-mentioned bill of entry are liable for confiscation is upheld. The confiscation in respect of the goods imported under the first two bills of entry is also upheld. The demand of differential duty of Rs. 9,04,162/- and Rs. 10,64,383/- in respect of the first two bills of entry are upheld. The confiscation of 8119.84 Sq metres of vitrified tiles seized from various godowns of M/s. G.M. Exports u/s 111 (l) and 111 (m) of the Customs Act is upheld. The imposition of redemption fine of Rs. 10 lakhs on the above goods is upheld. The penalty imposed u/s 114 (a) of the Customs Act is reduced to Rs. 7 lakhs only taking into account the fact that the appellants paid an amount of Rs. 20 lakhs and executed a Bank Guarantee of Rs. 18 lakhs during the course of investigation of the case. The OIO is modified as indicated above as far as the appellant M/s. G.M. Exports are concerned. We are of the opinion that the Commissioner should have taken into consideration even the goods, which are not available for imposition of redemption fine. Hence we remand the issue to the Commissioner to impose a suitable fine in respect of the goods held liable for confiscation and not available with the department. As regards the non-imposition of penalty on the officers we find that the Order in review has not been served on the three officers. Therefore, deciding the issue without giving notice to them would be violation of principles of natural justice. Hence, Revenue's appeal on the second ground is rejected. Revenue's appeal is disposed of in the above manner.
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