TMI Blog2007 (5) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... lue of the respirators and earplugs and imposed penalty under Section 112 of the Act on Jayant Maru, the proprietor of appellant No. 1 and Himant Tank. 2. Background facts in a nutshell are as follows : 3. Relax Safety Industries, the appellant had imported in 1994, a consignment of what it described in the bill of entry that it filed for their clearance as "moulded plastic parts" and "plastic fabricated cups". The value of the consignment was declared by the importer to be of Rs. 85670/-. The bill of entry that was filed for their clearance indicated that some or all the goods were subjected to some adjudication, as a result of which they were permitted to be cleared on payment of fine. This information was claimed to be available from the rubber stamp put which prima facie indicates the result of adjudication. A copy of the adjudication order claimed to have been passed was not made available to CEGAT by the appellant despite its request. The goods were cleared on payment of duty on the value declared by the importer. Subsequently, the Directorate of Revenue Intelligence investigated into the matter, seized the goods in Gujarat and issued a notice which led to the adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porter or his agent pending issue of formal order so as to expedite clearance of goods. All that could be culled out from the bill of entry was that redemption value of Rs. 15,000/- and penalty of Rs. 5,000/- was imposed. 7. The report filed by the shed operating staff on the reverse of the bill of entry indicated that bag Nos. 41, 43, 44, 45, 80, 81 and 82 were nothing but the consumer goods and they are mouth covers for dust protection fitted with elastic bulbs. 8. The basic issue raised before the CEGAT was that once goods were subjected to adjudication, confiscation for the same goods were not impermissible. Though the appellant placed strong reliance on Mohan Meakin Ltd. v. CCE [2000 (115) E.L.T. 3 (S.C.)] the CEGAT found that the same was not applicable to the facts of the case. CEGAT noted that the decision was inapplicable as only a part of the goods was subjected to adjudication. The mere fact that they formed part of the same consignment of which one part was held liable to confiscation earlier does not impinge on the rest of the consignment. That part can be subjected to confiscation subsequently. 9. The CEGAT did not find any substance in the plea that any o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itable for such use. All that it shows is that in the particular country to those standards of which they cannot conform, they cannot be put to such use. There is nothing to prevent that they are being capable of use as such elsewhere. This, in fact, has been the stand that manufacturer of these goods took. They were manufactured by Moldex Metric Inc, California. That company, in its certificate dated 15-9-1992 signed by Albert Mintz, Vice President has taken the stand that the goods did not conform to United States of America's Federal regulations or the earplugs did not conform to the company's standards, the products are either trashed or given away for use outside USA. It further explained "In the past we have also given these products to other countries like Mexico, Columbia etc. Enclosed documents shows these approval". The documents enclosed to this certificate contain the record of disposition by the Material Review Board of this company to give away consignment of respirators and earplugs in one case as a charitable contribution for the Guadalaraja (in Mexico) explosion tragedy through Red Cross, and in another case to "give away the respirators for use in India". Thus it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of Rule 4 of the Valuation Rules which makes applicable as transaction value the price actually paid or payable for the goods when sold for export to India. Where the goods are not sold the question of applying the transaction value would not arise. It was in fact the contention of the importer before the Commissioner that the goods were received free. The manufacturer gave them away to Silkat, New York. That company in its certificate signed by Subhash Patel, General Manager, has said that the amount charged to the appellant was towards recovering our expenses such as packaging, storage, shipping, handling, insurance, nominal profits etc. It further certified that it had not paid any money to the manufacturer. In effect, therefore the goods have been supplied free of cost and the provisions of Rule 4 will not apply. Jayant Maru, in his statement dated 8-9-1992 said that the correct CIF value of earplug would be around 6.99 cents i.e. US $0.69 per plug. He has confirmed this in his statement of 14-9-1992 where he has said that he has purchased the earplug at US $ 138 per 2000 pairs. Maru has affirmed an affidavit dated 22-9- 1992 before a notary retracting the admission mad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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