TMI Blog2012 (7) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... for the customs authorities to assess the bill of entry and correctly classify the imported goods - description given in the bill of entry is in conformity with those given in the various import documents, namely invoice, packing list and bill of lading. Therefore, it cannot be held that the appellant tried to mislead the department - no misdeclaration on the part of the appellant attracting the provisions of Section 111 (m) of the Customs Act - confiscation and fine of penalties imposed on the appellant set aside - C/714 & 715/11 - - - Dated:- 5-1-2012 - Mr. Ashok Jindal, Mr. P.R. Chandrasekharan, JJ. Shri Anil Balani, Advocate for the appellant Shri Y.K. Agarwal, Addl.Comm(AR) for the respondent Per: Mr. P.R. Chandrasekharan, Member (Technical) These appeals and stay applications are filed against Order-in-Original No. 68/2011-12/CAC/AK dated 30.09.2011 passed by the Commissioner of Customs (EP), Mumbai. 2. The facts arising for consideration in this case are as follows. The appellant Surbhit Impex imported textile fabrics of various quantities under bills of entry numbers 940205 dated 22.3.2010, 940191 dated 22.3.2010, 938696 dated 10.3.2010 and 9401 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adjudicating and the order was passed without putting the assessee to notice on the various issues. In compliance to the said order, a notice dated 05.5.2011 was issued to the appellant proposing ? (i) to classify the goods under importation under CTH 5801 3200; (ii) to reject the declared value of imports under rule 12 of the Custom Valuation Rules, 2007 and to redetermine the same under Rule 6 of the said rules; (iii) to confiscate the goods under Section 111(m) of the Customs Act, 1962; and (iv) penal action on the appellant under Section 112(a) of the Customs Act and also on the director Shri Mahendra Jain. The case was adjudicated vide impugned order and the proposals in the show-cause notice were confirmed. In other words, the order confirmed the classification of goods under CTH 5801 3200, determined the assessable value of the goods under importation at Rs.1,81,80,771/- under Rule 6 read with Rule 5 of the Customs Valuation Rules, 2007 and a penalty of Rs.20 lakhs each was imposed on the appellant and its director Shri Mahendra Jain under Section 112(a) read with 114A of the Customs Act. The order also confirmed confiscation of the goods under importation under Section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve contentions namely:- 1) N.D. Metals Inds. Ltd. vs. CC (Imp), Mumbai 2009 (236) ELT 83 2) CC vs. Gaurav Enterprises 2006 (193) ELT 532 3) Padmanabh Silk Mills vs. UOI 2006 (193) ELT 536 (Guj) 4) Jaramsons Plastic Industry vs. CC 1993 (63) ELT 558 5) Mala Bhaktani vs. CC 1993 (63) ELT 563 6) Bajaj Health Nutrition P. Ltd. vs. CC Chennai 2004 (166) ELT 189 4. The ld. Additional Commissioner AR appearing for the revenue reiterated the findings given by the adjudicating authority in the impugned order. 5. We have carefully considered the rival submissions. As the consignment is a live one, after granting stay, we take up the appeal itself for consideration and disposal. 6. During the course of hearing, a specific query was put to the appellant as to whether they would like to get the retest of the goods under import done as requested by them before the adjudicating authority. The ld. advocate submitted that they did not want any retest of the goods and would agree to the classification under CTH no. 5801 3200 as held in the impugned order. We have also perused the tariff entries and the test reports. As per the retest reports of the Textile Committee, the fabric c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... importer had declared a unit price of US $0.65/mtr which was enhanced by the department to US $1.40/mtr. In other words, the value adopted is not a transaction value but a value which has been modified by the department for the purpose of assessment. On the contrary, in the instant case the importer has given details of 10 bills of entry wherein polyester corduroy fabrics have been imported at prices ranging from US $0.32/mtr to US $0.51/mtr. Why these values were rejected by the adjudicating authority is not at all forth coming in the order. There is no other evidence adduced by the department to show that the value of US$0.65/mtr declared by the importer in the import documents is incorrect. In the absence of any evidence, the loading of value on the basis of an import which is not contemporaneous is not sustainable in law and accordingly, we set aside the redetermination of value as proposed in the impugned order. 6.2 The next issue relates to confiscation of the goods and imposition of penalty. In the instant case the appellant had declared the goods under importation as polyester fabrics and the same description is given in all the import documents namely, invoices for the ..... 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