TMI Blog2014 (3) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... ause the appellant had initially made a claim for exemption from duty based on the documents available, it cannot be said that the appellant had misdeclared the goods. - there is no warrant for confiscation or imposition of any penalty. - Decided in favor of assessee. - C/88093/13 - Final Order No. A/2342/2013-WZB/C-I(CSTB) - Dated:- 4-12-2013 - P R Chandrasekharan And Anil Choudhary, JJ. For the Appellant : Shri J C Patel, Adv. For the Respondent : Shri M S Reddy, Dy. Commissioner (AR) PER : P R Chandrasekharan The appeal is directed against Order-in-Original NO. COMMR/PMS/ADJN/04/2013-2014 dated 17/05/2013 passed by Commissioner of Customs, CSI Airport, Mumbai. 2. The appellant, M/s. Rajiv Co. filed a Bill of E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assification under CETH 7102.31 as diamonds, unworked or simply sawn, cleaved or bruted. As per the HSN explanatory note, the sub-heading covers diamonds in their natural state, diamonds simply sawn, cleaved or bruted or which have only a small number or polished facets and tumbled diamonds of which the surface has been rendered glossy and shiny by chemical treatment. The department has assessed the goods to duty by classifying the same under heading No. 7102.39 which covers polished diamonds having multiple flat polished surfaces or facets, which do not require to be further worked before being used in jewellery. As per the expert's opinion received by the department, it is clear that the diamonds are only a semi-processed and needs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emption, whether admissible of not, is a matter of belief of assessee and does not amount to mis-declaration and consequently confiscation under Section 111 (m) of the customs Act is not warranted in such cases. The Hon'ble High court of Bombay in the case of CC vs. Gaurav Enterprises - 2006 (193) ELT 532 held that declaration with regard to untenable claim for exemption of duty is not a misdeclaration. This tribunal also followed the said decision in the case of C. Natvarlal Co. vide Order No. A/05/13/CSTB/C-I dated 20/12/2012. In the light of these decisions, he prays for setting aside the liability to confiscation, redemption fine and the penalty. 4. The Ld. Deputy Commissioner (AR) appearing for the Revenue reiterates the find ..... X X X X Extracts X X X X X X X X Extracts X X X X
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