TMI Blog2015 (10) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... has not referred any evidence before discarding transaction value and consequently, its enhancement – Plea taken that entire quantity of imported fabrics were confiscated for concealment and not for mis-declaration of value, is required to be deliberated in detail – Therefore order of commissioner is cryptic and not speaking one and liable to be set aside – Commissioner directed to address all issues raised by both parties and pass fresh order after hearing – Appeal disposed of. - Cus. Appeal No. 76300/14 - - - Dated:- 13-2-2015 - Dr D M Misra, Member (J) And Dr I P Lal, Member (T),JJ. For the Appellant : Shri S K Mehta, Adv. For the Respondent : Shri S P Pal, Appraiser (AR) ORDER Per: I P Lal: This appeal is file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of ₹ 5.00 lakhs on the importing firm, under Section 112 (a) of the Customs Act, 1962 for the said mis-declaration also ordered that the importer shall pay the appropriate duty on the entire 20913.1 kgs of the imported goods on enhanced value. Being aggrieved, the Applicant has filed the present appeal before this Forum. 3.0 The ld. Advocate appearing for the Appellant, has mentioned that the Hon'ble High Court of Calcutta vide its Order dated 3rd September, 2014 in the Writ Petition No.165 of 2014 filed by the petitioner (i.e. importer) has directed the Tribunal to dispose of the Appeal within a period of six months from the date of order. In the mean time, the petitioner/importer is allowed to obtain release of the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judgement of the Hon'ble Calcutta High Court in the case of LakhotiaUdyog Ltd. Vs. Union of India: 1992 (58) ELT 385 (Cal.) in this regard. It is submitted that the Appellants sought the amendment of Bill of Entry for weight difference, which was not considered by the ld.Commissioner. 3.2 On the issue of under valuation, the ld. Advocate submitted that no evidence has been produced by the Revenue for rejecting transaction value. The Department failed to show any contemporaneous evidence that the invoices were either fabricated or fake that any relationship existed between the importer and the exporter. Accordingly, without discarding the transaction value, no resort can be made to determine the value under the Customs Valuation Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t survive. 3.6 The ld. Advocate submits that while passing the order, the ld.Commissioner has ignored the aforesaid facts having bearing on the case and therefore, merits to be set aside. 4. As per contra, the ld. A. R. for the Revenue, submitted that there was an existing DRI Alert in respect of mis-declaration of value of the imported fabric from China and therefore, evasion of Customs duty. In such case, invariably the goods were examined on first Check basis before assessment and therefore, there is no force in the argument of the Appellants that as they had requested for the first Check before assessment, they do not have any intention to evade duty. He submits that the Appellants themselves at the first instance, had waived the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eous import of similar goods was also not supplied. It is the plea of the ld. Advocate that the ld. Commissioner has confiscated the entire fabrics under Section 119, which is applicable for confiscation of the goods used for concealing the smuggled goods. As there was no concealment, the impugned goods could not be confiscated. 6. In view of the facts and circumstances of the case, stated above, we are of the opinion that the ld. Commissioner has not considered the various issues raised by the Appellant, that is the issue of concealment, variation in weight on account of moisture, request for weighment of the goods before assessment of the imported goods is also not considered. We also find that the ld. Commissioner has not referred any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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