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TMI Blog2015 (10) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of US$ 1.90 per kg.. On the first check, viscose knitted fabrics were found in excess of the declared quantity. It further appeared from the Alert issued from DRI F.No.23/13/2011-DZU dated 09.05.2011 to the effect that certain importers are resorting to mis-declaration of value of import of fabrics from China. Accordingly, a proceeding was initiated against the importer. Issue of show-cause notice was waived by the importer on account of demurrage charges incurred by them, however, they requested for a personal hearing before adjudicating the case. After hearing, the ld.Commissioner - (i)confiscated 700.4 kgs. Of viscose knitted fabrics imported in excess of the declared quantity under Section 111 (m) of the Customs Act, 1962 with an op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commodity, namely, viscose knitted fabric is prone to absorb the moisture and therefore, the weight of the commodity at the time of their shipment and on arrival, is bound to variation. It is submitted that for concealment, it is necessary that there should be two types of goods, namely, (i) the one, concealed and the other (ii) concealing the goods. In the present case, the variation is on account of moisture content and difference in weighing the scale and therefore, the act of concealment is absurd. It is further submitted that nothing was concealed as there was no variation in the length of fabric and number of bundles, in which the impugned fabrics were packed. It is submitted that the importer has sought the assessment of the goods a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms, Mumbai Vs. Mahal axmi Gems : 2008 (231) ELT 198 (S.C.); (v) Eicher Tractors Ltd. Vs. Commissioner : 2000 (122) ELT 321 (S.C) 3.3 It is the contention that the variation in quantity in the present case, roughly works out to 3%. Demand is not sustainable for such a notional difference as held in case of G. H. Shaikh Vs. Commr. of Customs, Pune : 2003 (154) ELT 540 (Tri.-Mumbai). 3.4 It is submitted that even though the importer had specifically requested for the weighment before assessment, but the same was not considered by the Department. 3.5 It is the submission that the Hon'ble Supreme Court in the case of Union of India Vs. GangadharNarshingdas Aggarwal reported in 1997 (89) ELT 19 (S.C.), held that where the duty is levi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r confiscation. He however fairly agrees that weighment was not done before adjudicating the case. He submits that the Appellant never disputed the issue of valuation before the ld. Commissioner and therefore, there was no occasion to supply them the evidences in the form of contemporaneous import or otherwise before enhancement of value. 5. Heard both sides. We find that in the present case, the quantity of the imported fabric was mentioned in the packing list as 20912 kgs and in the invoices as 20212 kgs.. The importer had declared the quantity of imported fabrics in the Bill of Entry as per invoice. We observe that the ld. Commissioner has not examined as to whether the variation in weight of the imported fabrics was on account of moist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not speaking one. Accordingly, we set aside the order of the ld. Commissioner and allow the Appeal by way of remand. 7. At this stage, the ld. Advocate for the Appellant, has pointed out that the goods are still in the custody of the Department and demurrage is being incurred and therefore, in the interest of justice, we direct that in view of the request of the importer to weigh the goods before assessment, the said goods should be taken up for weighment in the presence of importer's representative, within 15 days from the date of receipt of this order and a copy thereof, should be provided to them. The ld. Commissioner is directed to address all the issues raised by both the parties and pass a fresh order after hearing them within o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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