TMI Blog1987 (2) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment of the goods in question (Tam Brand Bearings No. 7511 of Chinese origin) at U.S. $ 2.20 per piece C.I.F., (ii) confiscation of the goods subject to redemption on payment of a fine of Rs. 3,33,000/-, additionally levied a penalty of Rs. 1000/- on M/s Basant Industries. 2. While M/s Basant Industries appeal (Appeal No. 1442/85-A) against the aforesaid order in regard to the determination of assessable value as well as the confiscation, determination of the quantum of fine for redemption and levy of penalty, the Revenue s appeal (No. 912/86-A) is for enhancement of the penalty in the facts and circumstances of the case. 3. The facts, in so far material, are substantially the same as in Appeal No. C/144/85-A decided in our o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter was neither supplied nor allowed to be inspected and, consequently, there has been a violation of the principles of natural justice. In the determination of the fine in lieu of confiscation as well, the adjudicating officer proceeded on the basis of the margin of profit on the goods which is reported to be approximately 110% without affording the assessee any opportunity in violation of the principles of natural justice. 4. The Appellant in Appeal No. 1442/85-A (M/s Basant Industries) had preferred an application (C/Misc/744 of 1986-A) for admission of additional evidence consisting of copies of an invoice No. 655, dated 20-9-84 favouring M/s Ruby Bearings Pvt. Ltd. and the Bill of Entry, dated 2-2-1985 relevant for the import in q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each instalment of import pursuant to a single contract for delivery in instalments may vary depending on the price at which such goods are ordinarily sold at the time of import in terms of S.14(1) (a). Similarly, it is not inconceivable that the assessable value is not constant on the application of the Valuation Rules as well when the imports are separated in point of time or place. The extent of misdeclaration, if any, will vary accordingly from import of one instalment to another ; (c) nevertheless, in terms of the notice dated 29-3-1985 to show cause, the allegations made and the evidence relied upon are precisely those in the notice dated 28-11-1984 to show cause issued in respect of the import of the first instalment, except that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdeclaration earlier, on identical allegations and evidence in the second adjudication, there could hardly be any, much less a deliberate misdeclaration that deserved confiscation and penalty. Right or wrong, the assessee declared -the price payable for each instalment in terms of the contract as the assessable value in each of the Bills of Entry relating to the successive shipments in accordance with the instalment delivery. The assessable value determined by the Additional Collector was the subject matter of an appeal filed on 5-2-1985 (i.e. almost contemporaneously with the B/E filed in this case) before the Tribunal. Before that appeal was decided, he could not have adopted any other value for the import of the second instalment without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revious assessment is not to be departed from capriciously but for good and cogent reasons like e.g. fresh facts, change in the law etc. [Para 18 of the report of the judgment of the Delhi High Court in 1981 E.C.R 333 = 1981 E.L.T. 328 - 3.K. Synthetics Ltd. v. Union of India], No such reasons appear in the course of the adjudication order except that it was a deliberate mis-declaration. Further, proceedings for confiscation under S.111 or for levy of penalty under S.112 are penal in nature and quasi-criminal in character even though such proceedings are under a fiscal enactment. Assessment of duty and levy of penalty or a direction for confiscation are two separate aspects of adjudication. Penalty is not merely an adjunct to assessment, n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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