TMI Blog2009 (11) TMI 765X X X X Extracts X X X X X X X X Extracts X X X X ..... reported thus : The sample is in the form of pouches. It is composed of spun bounded polyethylene on one side and other side is made of polyester transparent film . As it appeared from the test report that the declared description of the goods was not correct, the bill of entry was assessed provisionally upon a bond having been executed and a bank guarantee having been furnished by the importer. The bank guarantee was for an amount of Rs. 8,49,607/-. In the bond executed by the importer, they undertook to produce amended licence from the Director-General of Foreign Trade (DGFT) within a period of two months or within such extended period as the Asst. Collector might allow in his absolute discretion. The importer also undertook that, in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently, the case of misdeclaration of description of goods came to be taken ahead, with the result that the demand of duty stood confirmed against the assessee, confiscation of the goods was ordered, redemption fine of Rs. 1,81,406/- was determined under Section 125 of the Act and equal amount of penalty was imposed on the party under Section 112 of the Act. The appeal filed by the party against the Asst. Commissioner s order was rejected on merits. The present appeal of the assessee is directed against the decision of the lower appellate authority. 2. After hearing both sides and considering their submissions, I find that the legality of finalisation of assessment is presently in question. The goods were declared as pouches (made of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) of sub-section (1). Clause (b) reads as under :- where the proper officer deems it necessary to subject any imported goods or exported goods to any chemical or other test for purpose of assessment of duty thereon . In this case, obviously the proper officer of customs allowed provisional assessment of the goods pending completion of the chemical test for which samples were sent to the Department s laboratory. This was allowed against sufficient security furnished by the assessee. A bond was executed and a bank guarantee furnished in this connection. In the bond, the assessee had clearly undertaken to produce amended Advance Licence within two months or within such extended period as might be allowed by the Asst. Commissioner in his abs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry. Even at the time of provisional assessment, the importer did not deny the mis-declaration. The mis-declaration was brought to light by the test report, whereupon the party rushed to the DGFT for amendment of Advance Licence. This conduct of the importer tacitly amounted to admission of mis-declaration of goods in the bill of entry. In this context, it needs mention that the identity of the goods as revealed by the test report was accepted by the DGFT for amending the relevant entry in the licence. The mis-declaration of the goods rendered the goods liable to confiscation under Section 111(m) of the Act and also rendered the declarant liable to penalty under Section 112 of the Act. Further, though the goods were not available for confisc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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