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TMI Blog2013 (10) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... pallets and are unbranded . It cannot be ascertained "whether they are defective or not". Further visually they appeared to be old but unused. ...... to see the goods." 2. Thereafter the goods were examined by the Deputy Commissioner who remarked as under :- "Goods are new and prime they are not stock lot. Valuation may be carried out accordingly." 3. Based upon the above observation of the Deputy Commissioner, Revenue entertained a view that description of the goods in the invoice is not correct as also the classification of same under heading 8540 4000 is not correct. The goods are properly classifiable under heading 8540 0090 and chargeable to customs duty at the rate of 12.5%. Accordingly, the matter was taken up for adjudication by the Additional Commissioner of Customs, who observed that inasmuch as the wrong classification was claimed by the importer and the goods were not stock lot and were new goods as observed by the Deputy Commissioner (Shed), the same were also undervalued. He accordingly, enhanced the value of the goods on the basis of NIDB data Accordingly, vide his order, he confiscated the goods with an option to the appellant to redeem the same on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t admittedly first examination report conducted on 9.1.06 is to effect that visually the goods appeared to be old but unused. However, the second report of the Deputy Commissioner is to the effect that goods are new and they are not 'stock lot'. We find that Deputy Commissioner examined the goods visually. Except the said report of the Deputy Commissioner, every other documents i.e. the invoices raised by the supplier, packing list as also the BL describing the goods as stock lot. From the facts on record, we find that goods are of various sizes and of various numbers. The invoices raised by the supplier also reflects upon the value of each and every item. Revenue has not adduced any evidence to show that value of the said goods as reflected in the suppliers invoice is not the correct value. Comparing the same with NIDB data, where the goods were unbranded goods and there is no disclosure by the lower authorities as regards the brand name of the goods entered in NIDB data is neither appropriate nor proper. 8. In any case and in any view of the matter, we find that it stand held by various Courts that the charges of under valuation cannot be upheld on the basis of NIDB data. Refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal to the above extent. (Pronounced in the open court on ..............) Archana Wadhwa , Member (J) Manmohan Singh, Member (T) I record separate order. PER : Manmohan Singh 13. I have gone thorough draft order recorded by learned Member (Judicial). I have also examined the various aspects and I am not in agreement with the decision and finding recorded. I therefore record separate order as under :- 14. Facts recorded in para 5 of the order proposed by learned judicial member, itself speak that there was realisation of higher value of misdeclared goods by customs through auction, Rs.10 lakh realised by auction was nearly two and a half times of the declared value. This speaks for itself that declared value of Rs.4.18 lakh was deliberate misdeclaration when declared value was Rs.4.18 and value realised was Rs.10 lakh. Profit margin of 250% is inconceivable. Thus valuation by customs does not have any room for doubt of any arbitrariness. The appellant failed to make true declaration and invoices produced showed branded goods as per invoices on record with different specification were imported. Burden was on importer to prove that declaration of description and value was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese were rightly classifiable under chapter heading 8540 0090 attracting duty of 12.5% Assessment order no. 42/2006 dated 07.12.2006 has truly described the nature, uses and various specifications of Data/Operator display tube colour with a phosphor dot screen pitch smaller then 0.4 mm. No catalogue was produced by the party to verify above characteristics . Also no description was mentioned in Import invoice. Goods' description was misdeclared to claim wrong classification under 85404000 since the basic customs duty under this CTH was nil by tariff. Goods were actually classifiable under CTH 85401190 and Basic Customs duty chargeable was @ 12.5% Importer accepted during the personal hearing on 24.01.2006 before Commissioner, that CRT imported by them are meant to be used in colour TVs. There was clear admittance of misdeclaration . 20. Invoices on record show import of branded goods though in examination these are described as unbranded goods. Appellants have attempted to evade duty by way of misdeclaration of the import. Once misdeclaration as to value, and classification is found, appropriate duty became payable with other consequences of law. Plea that it was only wrong class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 113, or abets the doing or omission of such an act, shall be liable, - (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty not exceeding three times the value of the goods as declared by the exporter or the value as determined under this Act, whichever is the greater; (ii) in the case of dutiable goods, other than prohibited goods, to a penalty not exceeding the duty sought to be evaded or five thousand rupees, whichever is the greater; (iii) in the case of any other goods, to a penalty not exceeding the value of the goods, as declared by the exporter or the value as determined under this Act, whichever is the greater." 25. In view of above, I hold that penalty of Rs.1.5 lakh has been righty imposed on the appellants and that is upheld. No order for redemption fine is required as appellants have abandoned goods. Manmohan Singh, Member (T) DIFFERENCE OF OPINION Whether there was delibate misdeclaration of classification and description as well as value inviting penal pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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