TMI Blog2009 (5) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... light fittings respectively. These were assessed under II appraisement system and assessed duty paid before examination. Value declared was enhanced in respect of furniture and light fittings. Investigation pursuant to intelligence received revealed that the assessee had sought to clear polyester fabrics under cover of Bill of Entry No. 627746 under Duty Free Import Authorization (DFIA) scheme, availing exemption under Notification No. 40/06-Cus., dated 1-5-2006. The DFIA produced did not cover import of 100% polyester fabrics of GSM 237 and GSM 176.1 under import. The transaction value of items of furniture under import under cover of Bill of Entry 637273 were found to be misdeclared seeking to evade the duty due on the consignment. Simil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (l) and 111(m) of the Act and the asseessee offered an option to redeem them on payment of a fine of Rs. 1,50,000/-. The following penalties were imposed on Yashavi under Section 112(a) and 114A of the Act for rendering the goods covered by the respective Bills of Entry liable for confiscation under the Act and to evade customs duty. (a) Rs. 75,000/- in respect of Bill of Entry No. 627746 (b) Rs. 80,000/- in respect of Bill of Entry No. 637273 (c) Rs. 65,000/- in respect of Bill of Entry No. 636569 M/s. Yashavi Enterprises challenges the demand and, fine and penalties imposed on them. 2. We have heard both sides. We have considered the records and the rival submissions. We deal with the dispute seriatim Bill of Entry w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le of the duty of Customs leviable thereon which is specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and from the whole of the additional duty, safeguard duty and anti-dumping duty leviable thereon, respectively, under sections 3, 8 and 9A of the said Customs Tariff Act, subject to the following conditions namely :- (i) that the description, value and quantity of materials imported are covered by the said authorisation and the said authorisation is produced before the proper officer of customs at the time of clearance for debit: Provided that in respect of resultant product specified in paragraph 4.55.3 of the Handbook of Procedures (Vol. I) of the Foreign Trade Policy, the materials permitted in the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Board. In terms of paragraph 4.55.3 of the Hand Book of Procedures, Volume-I 2004-2009, in respect of some 22 items specified therein, the exporters are required to give declaration with regard to technical characteristics, quality and specification in the Shipping Bill. This position has also been captured in Circular No. 16/2006-Cus. dated 9-5-2006. Further, conditions (i) of Notification No. 40/06-Cus., dated 1-5-2006 states that in respect of the resultant product specified in paragraph 4.55.3 the materials permitted in the DFIA shall be of the same quality, technical characteristics and specification as the materials used in the resultant product and that in respect of the said resultant product, the exporter shall give declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ractice in relation to import of Chinese furniture followed in the country. The assessee accepted the enhancement of the additional duty liability rejecting the transaction value declared. However, they have challenged the fine and penalty imposed. A fine of Rs. 1,50,000/- was imposed under Section 111(d), 111(1) and 111(m) of the Act. The confiscation and penalty follow a finding that the value was misdeclared. We find that the enhancement of value was made without putting the importer on notice as to the material relied upon for such enhancement. That the importer accepted the enhancement of value and paid the additional duty do not justify confiscation of the goods under Section 111 of the Act. There is no misdeclaration or violation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fidavit furnished before the Hon ble High Court of Madras in response to apprehensions expressed by the importer that they would be held liable for incorrectly ascertained quantities, that department would proceed in this regard after proper the verification. In the light of this affidavit by the investigating officer also we accept the contents of the mahazar as true. In case it was not so, the proper course to be followed was for the importer to approach the Hon ble High Court. The appellants have accepted the discrepancy as regards the item cabinet connections and attributed it to clerical error. In the circumstances, we uphold the order of the Commissioner as regards the misdeclaration of quantity and value of the consignment, its liabi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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