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M/s. Sky International Versus Commissioner of Customs (Appeals) New Delhi

When such act on the part of the importer has to be held as mala fide so as to attract the violation of mis-declaration, as regards quantity - Import of PU Leather Cloth - Interchange of number of rolls of two different types of thicknesses - Held that:- we have examined the commercial invoice which also interchanges the two types of thicknesses of the fabrics imported by the assesse. It is based upon the said invoice itself that wrong declaration was made by the importer. There is otherwise no .....

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ed by the Revenue to suspect the correctness of the transaction value. If that be so, the transaction value has to be accepted as the correct assessable value. Further, it is again well settled that NIDB data cannot be adopted as a ground for enhancement of the value. As such in the absence of any other evidence on record, we find no merits in the Revenue’s stand.

However, it stands admitted by the appellant that 293 rolls declared as 0.5 mm thickness were, in fact, 0.9 mm thickness .....

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able value of the consignment is required to be re-calculated based upon the total number of rolls of two different thicknesses. For the said purpose, we set aside the impugned order and remand the matter to the Original Aujudicating Authority for calculating the duty demand, if any. Therefore, the enhancement of the imported goods as adopted by the Revenue is set aside. Also no justifiable reasons found for confiscation of goods or for imposition of penalties. - Appeal disposed of - C/481/2011- .....

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loth of 0.5 mm thickness was USD 0.80 per meter and the value declared for the said goods of 0.9 mm thickness was USD 1.50 per meter. The bill of entry filed by the appellant was assessed on second check basis with 10% examination order as per declaration made by the appellant. The value of PU Leather Cloth of 0.5 mm thickness was enhanced to 0.90 USD per meter and of thickness 0.9 mm was enhanced to UDS 1.90 meter from the declared invoice value of 0.80 USD and 1.50 USD respectively. The same w .....

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hey entertained a view that there was the mis-declaration in respect of the value of the goods. Accordingly, by adopting the value of the contemporaneous import of 1.2 mm as checked from NIBD data, the value was proposed to be raised. 3. As the appellant waived the show cause notice, the matter was taken up by the Additional Commissioner of Customs for enhancement of the value. By referring to the interchange of the rolls of different thickness and by considering 293 rolls as being of 1.20, thic .....

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d on the importer under section 112(a) (ii) of the Customs Act, 1962. 4. On appeal against the said order, appellant took a categorical stand that there was interchange of two types of fabrics while mentioning the total number of rolls. It was admitted by the importer that 127 rolls, which have been declared as of thickness 0.9 mm, were, in fact, of 0.5 mm and the 293 rolls declared as 0.5 mm thickness were of 0.9 mm. They contended that the said declaration stands made by them based upon the in .....

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as the correct assessable value. 5. The appellate authority, however, did not find favour with the appellant s submissions and accordingly the appeal. Hence the present appeal. 6. After hearing both the sides and after going through the impugned orders, we find that there is admittedly an interchange of number of rolls of two different types of thicknesses. Such interchange stands accepted by the importer and stands attributed to a human error. It is their contention that inasmuch as the invoice .....

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rds quantity. We have examined the commercial invoice which also interchanges the two types of thicknesses of the fabrics imported by the assesse. It is based upon the said invoice itself that wrong declaration was made by the importer. There is otherwise no evidence on record to reflect upon any mala fide of the assesse. As such by extending benefit of doubt to the appellant has also attributing the said inadvertent mistake to human error, we hold that there was no mis-declaration in respect of .....

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ed with the said enhancement done on the first check basis and had taken no appellate action against the same. 9. Subsequently, on 100% examination of fabrics, Revenue found that 293 rolls were, in fact, of 1.2 mm thickness. However, we really fail to find out the basis for holding that the said 293 rolls which according to the appellant were of 0.9 mm were actually of 1.2 mm. It is not possible for any person to arrive at the thickness of the cloth by a mere visual examination. In the impugned .....

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be made the basis for enhancement of the value of the imported goods without first rejecting the transaction value in terms of the provisions of Rule 3 of the Customs Valuation Rules, by producing sufficient evidences. Reference in this regard can be made to Tribunal decisions in the cases of : - 1. TOPSIA ESTATES PVT. LTD. VERSUS COMMR. OF CUS. (IMPORT-SEAPORT), CHENNAI reported in 2015 (330) E.L.T. 799 (Tri. Chennai) 2 UMRAO SINGH PAWAN KUMAR VERSUS COMMISSIONER OF C. EX., DELHI-IV reported i .....

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