TMI Blog2006 (8) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... t payment of duty? (B) Whether the Revenue has discharged the burden of proof to show that the said goods are smuggled as the same are non-notified under Section 123 of the Customs Act, 1962? (C) In the event the answer to question (a) is in the negative, the answer to question (b) is in the affirmative, whether the said goods are prime quality or not? (D) Whether the penalties imposed have been correctly imposed? (ii) Re : (A) above : The said goods were detained on 27-3-1997 and seized on 13-5-1997 along with 68.01 MTs of Stainless Steel Sheets (hereinafter referred to as the said sheets ) in a godown at Kalamboli, Navi Mumbai. At the time of seizure, the said goods were found packed in 11 wooden boxes. Labels were found stuck on each of these wooden boxes. Two such sample labels are at Pages 83 and one on Page 219 of the Appeal Memo. The labels, inter alia, contained the following details : (i) Order No. (ii) Serial No. and Weight (iii) Shipping Marks and Nos. (iv) Dimensions The dimentions mentioned are totally beyond tolerance limit such as 9,99,000 x 9,99,000 x 9,99,000. The serial no. and the weight on the labels tally wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same shipping marks and numbers which are found on the Bill of Entry which in turn, correlates to the labels on the wooden boxes of the said goods at the time of seizure. The Respondent-Commissioner has not considered these relevant documents, and therefore, the Order of confiscation and penalty is not sustainable. (iii) Re : (B) above : It is admitted that the said goods are not notified under Section 123 of the said Act. In such a case, the burden to prove that the goods are smuggled is on the Department. This burden has not at all been discharged in the present case. Except for finding faults by looking at the documents in isolation and not reading all of them together in a series, the Respondent-Commissioner has not shown why the said goods are smuggled. Reliance is placed on the following decisions/judgments in support of the submissions that since the said goods are not notified and the Department has not discharged the burden, the said goods are not liable for confiscation : Pradip Kumar Agarwal v. Commissioner of Customs, W.B. - 2003 (153) E.L.T. 307 (Tribunal) Ravi Mittal v. Commissioner of Customs, New Delhi - 2000 (117) E.L.T. 182 (Tribunal) Samir Saha v. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof cannot be determined on the basis of price of prime quality material. Consequently, the duty demanded on the value of prime quality goods is illegal and bad in law. (v) Re : (D) above : In any view of the matter, the show cause notice dated 14-8-1997 does not invoke the provisions of Section 114A of the said Act and hence, the penalty imposed thereon is without jurisdiction and without authority of law. The impugned Order does not in any manner bring out the role played by Shri Vinit Dhupia and therefore, the penalty imposed on his is liable to be set aside . 3. The arguments made on behalf of the Department are as follows : (i) This is a remand matter and the limited purpose for which case is remanded is re-determination of facts based on material evidence i.e. packing list, invoice and Bill of Lading and also for re-determination of penalty under Section 114A of Customs Act, 1962 and interest u/s. 28AB of Customs Act, 1962. (ii) In this case, on information about mis-delcaration and understanding of value, a total of 104.577 MTs of Steel goods were detained. They consisted of 22.040 MTs of Coils 68.014 MTs of Sheets and 14.523 MTs of Circles . (iii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny Circles . (ix) In view of the above, the notices contention that S.S. Circles are covered at page No. 3, Sr. Nos. 13 to 23 of packing list D. 378, dtd. 10-3-97, is a travesty of facts; and clearly misleading. The report of the metallurgical expert reads circles (lot no. 330 of M/s. Transman International Ltd.). The surface of the circles were found free from any rolling or other surface defects, which appear to be of prime quality . (x) The test report given by Steel Authority of India on 12-4-97 reads - The thickness measured were uniform and specific range of 1.39, 1.395 and 1.40 mm. The mechanical properties are within the standard ASTM tolerance. Surface roughness is as per internationally accepted standards viz. RO RI 0.11 1.47 - sample 1 0.10 1.47 - sample 2 (xi) The chemistiy conforms to international standards in grade 304 stainless steel. From visual inspection, chemistry, surface roughness etc. The sample provided appears to be prime quality material. (xii) In addition to the above, the Customs Appraisers report dated 24-6-97 also confirms the above facts. (xiii) In the end result, the goods are of prime quality and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luding the Packing List. They have also argued that the Docks Appraiser physically examined one of the packages of the Packing List No. 18 which contained the impugned Circles. In view of these facts and the fact that no evidence has been gathered to show that the appellants imported more quantity than what has been declared, the benefit of doubt goes to the appellants, in regard to the charge that 14.523 MT of Stainless Steel Circles were imported in addition to the declared quantity of Stainless Steel Sheets. 5. The appellants have also shown correspondences from the supplier regarding the possibility of the consignment containing some Circles. They have also stated that the labels/weight of the packages containing the Circles also correspond to the weight, number and Shipping Marks on the import documents. Hence, we are of the view that the appellants cannot be penalized for mis-declaration or mis-statement. 6. However, from the evidence placed before us, it is clear that the imported consignment consisted of 14.524 MT of Circles of uniform size and the same has been found to be of prime quality by the chemical examiner as well as by the independent experts consulted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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