TMI Blog2019 (2) TMI 1572X X X X Extracts X X X X X X X X Extracts X X X X ..... supplied by the overseas supplier. The CHA, who was authorised to effect Customs clearance made available those documents, and was asked by the appellant to classify imported goods as per the aforesaid documents considering the nature and description of the goods. Therefore, if cannot be held that there was a deliberate attempt on their behalf to mis-declare the imported consignment. In fact, in past the Customs itself has cleared similar consignments as per the declaration given by the appellant at the strength of the export invoice as per the description of the goods therein. Revenue has not been able to prove that the appellant has paid any extra amount to the overseas buyer other than whatever is mentioned in the export invoice through banking channel. Regarding the consignment which has been imported by the appellant in past, it was argued that those imports have been under section 17 of the Customs Act without resorting to any provisional assessment. The Department has also not challenged the assessment order, and which had become final under Section 17 of the Act during the relevant period. The demand pertaining to past period is not sustainable. Also, the demand for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther investigation. The samples drawn were forwarded to Central Revenue Control Laboratory, New Delhi, (CRCL) for testing vide letter dated 06/06/2013. After the receipt of the reports from CRCL, New Delhi, were found as below mentioned against the declared imported goods(fabrics); Table-1 Sl No. Samples No. Description of goods as per test report received from CRCL Description of goods as per declaration 1 A-1 Twill weave, width 58 . Cotton yarn 56.8%; polyester texturised multifilament yarn 40.4 %; elastomeric yarn balance (2.8%) made of yarn of different colour. GSM 4117 Cotton Plain dyed fabrics (Width 58 ) GSM-260+/- 10% 2 B-1 Twill weave. Width 58 Brown coloured cotton yarn 99.2 %, elastomeric yarn balance (0.8 %). Not made of yarn of different colours.GSM 208 3 C-1 Twill weave. Width 58 Elastomeric Yarn 2.2 % Black coloured polyester texturised multifilament yarn 26.9 %; blue coloured cotton yarn balance (70.9%). Made of yarns of dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmitted that description given at the time of filing of Bs/E were incorrect and incomplete, on the bonafide belief that goods contained in the consignment is as per declaration. He also agreed that as per his understanding the items on Sl. NO 1,3 and 6 (A1 C1 F1) will be classified under heading 52 122 400 and item at Sl No. 4 (D1) will be classified under heading 55 164200 of Customs Tariff Act, 1975, and the differential duty as per changed classification would be around ₹ 6.50 lacks and he also volunteered to deposit the same and accordingly the it was deposited by him vide two demand drafts of ₹ 3.50 lakhs and 6.50 lakhs, towards the differential duty as additional of the duty liability. 4. Shri Desai, in spite of repeated demand by the investigating officer, could not produce the manufacturer s invoice in respect of imports made by the appellant. This was explained to be on account of the fact the consignments were pooled from different China based exporters who exported their goods through a merchant exporter, as they were small manufacturers based in China. Regarding the inquiry about the past clearance of the similar nature during period from 25/07/2011 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bric 15648 Mtr 17154.12 2 Knitted fabric 59683 Mtr 80572.05 87001.99 24016.49 Polyester Knitted Fabric, 4115 Mtr 5529.94 3. Polyester Knitted Fabric, 41785 Mtr 56152.7 92208.15 40518.15 Knitted fabric 25967 Mtr 35055.45 4. Polyester Knitted 3770 Mtr 5066.31 55663.81 2190.03 5. Even on the repeated inquiries by the Investigating Officer, Shri Desai could not produce the manufacturer s invoice of imported goods, bank account statement of the appellant, contacts, details of the foreign supplier, evidence regarding the payment of freight pertaining to the import consignment. Based on these investigations, the Show Cause Notice was issued, to the appellants which culminated into the impugned order. 6. Ld. Advocate on behalf of the appellant woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s-declaration of value by the appellant. 9. It was further submitted by Ld. Advocate that the Ld. Adjudicating Authority observed that the issue in this case of was not of the mis- declaration of the value, but the description of the goods, which will require the re-classification of the goods and hence also payment of differential duty. He also submitted that there was an agreed mis-declaration regarding the nature and composition of goods. After the adjudication, Ld. Adjudicating Authority re-determined the assessable value to be ₹ 8,96,477/- and ordered the appellant to pay the differential duty of ₹ 10,71,414/- in respect of item Sl. No. 1 ,3 and 6 of imported consignment vide Bill of Entry No. 229352 dated 31/05/2013 of the table. He also ordered confiscation of the said goods and imposed the redemption fine. 10. Ld. Advocate further submitted that the demand against the live consignment( as per Table-1 is based on the CRCL), test report was mentioned that punchanama was not drawn for re-sealing of container at the examining the same by the Customs Officer and also no samples were provided to the appellant after the examination of DRI, and therefore, they w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments have been signed or authenticated by the Chinese authority. The copy of this report thereof was also not enclosed along with the Show Cause Notice or even provided to the appellant thereafter. The Chinese Custom s Letter dated 20/10/2014, contained a categorical averment which reads as under; Accordingly to the declared import information, you have provided us, we have completed the investigating concerned and trade declared information at export in China including the export BL No, declaration, unit price, total price and other shipment, particulars of the commodity will be emailed to you @cgihk.gov.in, however, this E-mail was not provided to the appellant with the Show Cause Notice or any time later thereafter, which suggested that the information obtained by the CION office at Hong Kong is not complete and hence not reliable. In fact, in four of the instances, the BL number provided by Chinese Customs were different from the Bill of lading filed with Bills of Entry at the time of import. The declaration made by the Chinese supplier also did not tally with the description of the goods appearing on the Bills of Entry as arrived by the Customs Officer at the time assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterpart from China regarding the export price of the past consignments. The officer (COIN) prepared a chart after the co- relating to the details of the various import made by the appellant and accordingly submitted the same information to the DRI which was made available to the appellant and accordingly the demands was confirmed in respect of past consignments by following the due process of law. He therefore argued that the impugned order is correct and legal and thus required to be upheld. 14. Heard Ld. AR and Advocate extensively and also perused the appeal records carefully. 15. The issue involved in this case is two-fold, first the seizure and adjudication of the live consignment imported vide Bill of Entry No 2293952 dated 31.05.2013. This consignment, was detained by the Customs officer on 04/05/2013 without any detention memo. It is not disputed that the Custom officer was in the process of examination of the container on 04.05.2013, after opening the container. Thereafter on receipt of the information that the DRI would be examining the consignment the container was sealed again. We find that for sealing of the container, there is no record. Ld. Advocate strenuousl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on their behalf to mis-declare the imported consignment. In fact, in past the Customs itself has cleared similar consignments as per the declaration given by the appellant at the strength of the export invoice as per the description of the goods therein. Therefore, Ld. Advocate, was of the view, the appellant has not deliberately mis-declared the consignments but under the bona fide belief that the goods imported by them is cotton textile fabric and not mixed with any other material so as to change the classification. We find that the appellant has submitted another invoice to the DRI officer which contained more or less identical description of the goods, but more detailed one, meant for sorting of the imported consignment. Therefore hold that the appellant have not made any deliberate mis-declaration. In holding so we place reliance on the decision of Shree Ganesh International vs. Commissioner of C. Ex. Jaipur, [ 2004 (174) ELT 171 (Tri-Del)]. The finding is reproduced as under; 7. We have considered the submissions of both the sides. The Revenue has clearly established that polyester fabrics imported by the Appellants does not contain 85% or more by weight of non-tex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and if the Appellants have claimed wrong classification according to his limited understanding of the Customs Law, mens rea cannot be attributed to him. Accordingly, we hold that in the present matters, it cannot be claimed by the Revenue that the Appellants have deliberately misdeclared the goods with a view to avail the benefit of lesser rate of duty. We, therefore, set aside the confiscation and consequently the redemption fine imposed on them in both the appeals as well as the penalty. 19. Revenue has not been able to prove that the appellant has paid any extra amount to the overseas buyer other than whatever is mentioned in the export invoice through banking channel. Regarding the consignment which has been imported by the appellant in past, it was argued that those imports have been under section 17 of the Customs Act without resorting to any provisional assessment. The Department has also not challenged the assessment order, and which had become final under Section 17 of the Act during the relevant period. Revenue is not permitted to re-agitate the issue of classification and mis-declaration of the value based on the report received from the DRI officer (COIN), regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following position emerges: (a) The revenue has relied upon copies of export invoices and declaration submitted by the suppliers the exporters before the Turkish authorities. This is evident from the reading of paragraph 9.1.1.1 of the 2nd corrigendum issued and the revenue has relied upon 18(sic 16) bill of entry to charge undervaluation. A perusal of the letter dated 30.10.2009 addressed by first secretary, Moscow to the additional director general of DRI seems to suggest that information regarding 252 consignment in the form of comparative chart were given put of which 48 cases the declared value (at Turkish Port) match with the invoice value and in 204 cases there was significant difference. The letter further states that an exercise of segregation and co-relating such documents would be needed. It is also seen that the comparative statements set to have been filed awarded is blacked out and most of the entries have been redacted and cannot be read. The revenue has not been able to explain this satisfactorily. It is settled law that in order to be admissible as an evidence, the copies of the foreign documents are required to be tested and signed by the Turkish Customs aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of A.M. Impex (supra), we are of the view that there is no scope of opening of the assessment for the past period merely placing reliance on COIN that too which is not conclusive. The report received from the COIN would have been the starting point of the investigation but not the conclusive proof regarding the alleged mis-declaration resorted by the appellant and also implicating the Director of the appellant company. 24. We thus find that the demand pertaining to past period is not sustainable. We also find that the demand for the past clearance is proposed to be made against finally assessed bills of entry, which is not permissible without the same being reviewed as held by Hon ble Supreme Court in case of Flock India Priya Blue overseas. The invocation of Section 28 of Customs Act is not attracted as mis-declaration is not proved in these cases. 25. As far as demand pertaining to live consignment is concerned, the same has been accepted, we without going into further details uphold the same but without any penalty as there is no deliberate mis-declaration as part of the appellant. Reliance is placed on decision of System and Components Pvt. Ltd. [2004(165) ELT 136(SC ..... X X X X Extracts X X X X X X X X Extracts X X X X
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