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2022 (11) TMI 868 - AT - CustomsConfiscation of goods - Seeking release of declared goods - Misdeclaration of imported goods - Polished Marble Slabs (thickness below 2.0 cm) - quantity actually imported was much more than what was declared in the Bill of Entry and other documents - method of measurement adopted during examination - abatement of duty - Confiscation - redemption fine - penalty - HELD THAT:- To claim abatement under section 22, the importer has to prove to the satisfaction of the Assistant Commissioner/Deputy Commissioner that the damage occurred before unloading or during unloading or after unloading due to an accident - the abatement is of the duty and not of the quantity of the goods imported which is a matter of fact. After reckoning the entire quantity of goods which are imported, if some proportion of the goods are damaged, as per section 22, then the duty to that extent can be abated. The quantity of goods does not abate. If there were hairline cracks or if there was chemical damage or even if the corners were cut or chipped, the quantity of the goods imported does not vary. It must also be noted that abatement under section 22 only covers damages before or during unloading or after unloading but before examination due to accidents. Natural deficiencies in the imported material such as irregular edges which occur naturally are not covered under this section - It must also be noted that abatement of duty under section 22 and remission of duty under section 23 are exceptions to the levy of customs duty under section 12 on all goods imported. Hence, these provisions must be applied with due diligence and after recording the facts and also the satisfaction of the officer as required. In this case, the quantity of goods declared was 1,192.30 square metres while on examination 2,530 square metres was found. The adjudicating authority reduced it by 20% (towards corner cuts) and considered only 2,024 square metres as imported. Although the excess quantity imported was 1,307.70 square metres (2,530 – 1192.30) he confiscated only 831.70 square metres (2,024 – 1,192.30). The excess quantity of goods found are liable for confiscation under section 111(l) - The confiscated goods were valued at Rs.21,89,084 and hence the fine of Rs.5,00,000/- is fair and we find no reason to interfere with it. Likewise, the penalty of Rs, 1,20,000/- imposed on the appellant is also fair and we find no reason to interfere with it. If the goods are redeemed under section 125(1), the importer also has to pay customs duty under 125(2). Therefore, the demand of duty also deserves to be upheld. We, therefore, answer questions (f), (g) and (h) in favour of the Revenue and against the appellant. The appellant’s prayer for interim relief by releasing only the quantity of goods actually declared cannot be accepted because there is no provision for giving customs “out of charge” to only a part of the goods under section 47. The appellant could have redeemed the goods as per the order of the Additional Commissioner and still pursued the appeals - Appeal dismissed.
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