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2017 (5) TMI 857 - CESTAT NEW DELHI

2017 (5) TMI 857 - CESTAT NEW DELHI - TMI - Valuation - import of items which are in the nature of Toys, Ash Tray, Soft balls etc - enhancement of value based upon the NIDB data - Held that: - demand of duty in respect of 30 declared items by enhancing their value on NIDB Data basis cannot be upheld - confiscation can also not be upheld. - As regards Glass Chatons, it stands fairly admitted before us that the same were not declared by the importer. As such, we hold that such undeclared item .....

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in the import consignment would not ipso-facto lead to the conclusion that declared items were brought only with the intention of concealing the undeclared items. As such, we hold that their confiscation is not called for, the same is accordingly set-aside. - As regards the penalty on Shri Pankaj Gupta, Partner of the firm, we find that the partnership firm has already been held liable to penalty and as such imposition of separate penalty on the partner is not justified. - As regards pe .....

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CU (DB) - Dated:- 9-3-2017 - Mrs. Archana Wadhwa, Member (Judicial) and Mr. V. Padmanabhan, Member (Technical) Rep. by Shri J.P. Kaushik & Shri Bhasin Shetty, Advs. for the Appellants Rep. by Ms. Suchitra Sharma, DR for the respondent ORDER Per Mrs. Archana Wadhwa All the three appeals are being disposed by a common order as they arise out of the same set of proceedings. 2. After hearing both the sides duly represented by Shri J.P. Kaushik, and Shri Bhasin Shetty ld. Advocates for the appell .....

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same based upon the NIDB data. Apart from the said items, the consignment was also found to contain 40 boxes of Glass Chattons, which were not declared by the appellant. 3. The matter was taken up for adjudication. The lower authority confirmed the demand of duty in respect of 30 declared items by enhancing the assessable value based upon NIDB Data. As regards Glass Chatons, the value was again adopted from the NIDB Data and the demand was confirmed to the extent of ₹ 46.63 Lakh along with .....

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pon the under valuation of the said declared items. There is also no discrepancy about the description of the same and as such, enhancement of the value, without any evidence on record except NIDB Data, cannot be upheld. 5. As regards Glass Chatons, ld. Advocate fairly agrees that the same were not declared to the customs but submits that as per the correspondence entered into between them with the foreign supplier, the said Glass Chatons were sent by mistake. However, the assessee is ready to a .....

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n held to be beads. He submits that even though the said decision was placed before the Commissioner, he has side-lined the same and has not given any finding in respect of the said classification dispute. Ld. Advocate further submits that items 1 to 30 have been confiscated under the provisions of Section 119 of the Customs Act, on the ground that the same have been used to conceal the undeclared Glass Chatons. He refers to the Tribunal decision in the case of Kantilal Daga & Anandmal Sethi .....

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f penalty on the importers and not on the partners. 6. Arguing on behalf of Shri Rohit Saran, ld. Advocate Shri Shetty submits that he is an employee of the CHA who filed Bill of Entry and has been held liable to penalty for the alleged contravention of CHA Regulations. By drawing our attention to various decisions, he submits that such contravention of CHA regulations cannot call for imposition of penalty under the Customs Act, unless there is evidence to the effect that the CHA has abetted or .....

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covered by the various other items which were declared by the assessee and such coverage was with a malafide intention to conceal the Glass Chatons. As such, the confiscation of other items under Section 119 of the Act is appropriate. 8. After appreciating the submissions made by both sides, we have already held that demand of duty in respect of 30 declared items by enhancing their value on NIDB Data basis cannot be upheld. For the said reasons, then confiscation can also not be upheld. We will .....

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efore the Commissioner, he has not referred to the same and has not even distinguished it on any logical ground. The adjudicating authority was under the legal obligation to consider the law declared by the higher fora and to decide the issue accordingly. As such, for the limited purpose of classification of the Glass Chatons, we remand the matter to the Original Adjudicating Authority for fresh decision. The appellants duty liability would also be assessed accordingly. Inasmuch as the matter st .....

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