TMI Blog2023 (12) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted by them. From the two reports, it is clear that the impugned goods are Automotive Diesel Fuel and conform to the standards of IS:1460:2017 and therefore the challenge that the samples have not been tested on all the 21 parameters is baseless and does not establish that the goods are not Automotive Diesel Fuel. The controversy that the goods have not been tested on all 21 parameters would not really make any difference and even on the basis of limited parameters the identity of the goods stands established in view of cogent and substantive evidence in the form of test reports by the two independent government laboratories. These test reports cannot be said to be incomplete or inconclusive. Consequently, the goods in question imported by the appellant were mis-declared as they were not Mixed Glycol and Base Oil but were Automotive Diesel Fuel, the import whereof is restricted only by State Trading Enterprises in terms of the Import Policy, 2017. Therefore, the impugned goods being Automotive Diesel Fuel was covered under CTH 2710 1944 and not under CTH 2710 1971 as per the declaration made by the appellant. The veracity of these test reports given by highly techni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lakhs under Section 114AA of the Customs Act, however, the Appellate Authority reduced the same to Rs. 15 lakhs and Rs 10 lakhs under section 112(a) and 114AA respectively, considering that the section prescribes only the upper limit of penalty that can be imposed and since the goods have been absolutely confiscated, the penalty needs to be moderate - the impugned order agreed upon that the penalty as imposed by the adjudicating authority was excessive. Appeal dismissed. - MS. BINU TAMTA, MEMBER (JUDICIAL) Ms. Sunaina Phul, Advocate for the appellant. Shri Rohit Issar, Authorised Representative for the respondent. ORDER The appellant has assailed the Order-in-Appeal No. CC(A)CUS/DII/ IMP/ICD/TKD /1025/2022-23 dated 26/27.10.2022 passed by the Commissioner (Appeals). 2. The facts of the case are that an intelligence was gathered by the officers of DRI, DZU, that the appellant were engaged in clearing Automotive Diesel Fuel by misdeclaring the import consignments as that of Mixed Glycol or Base Oil . The import of automotive diesel fuel is restricted and allowed for import only by State Trading Enterprises in terms of ITC (HS) Import Policy, 2017, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned goods (Automotive Diesel Fuel) from CTH 27101971 to CTH 27101944; rejection of declared assessable value of Rs.66,31,084,29/- of the impugned goods under Rule 12 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 (for short CVR, 2007) and redetermination as Rs.79,57,301/- under Rule 4 5 of CVR, 2007 read with Section 14 of the Customs Act, 1962; confiscation of impugned goods under Section 111(d), 111(f) and 111(m) of the Customs Act, 1962 and penal action on the appellant under Section 112(a), 114 A and 114 AA of the Customs Act, 1962. The Adjudicating Authority affirmed the show cause notice, however, the appellate authority modified the Order-in- Original only on limited aspect of quantum of duty being excessive and hence reduced the same. 7. I have heard the learned counsel for the appellant and also the Authorised Representative for the revenue and perused the records of the case. 8. The main challenge in this appeal is to the validity of the test reports on the ground that the samples have not been tested on all the 21 parameters specified in IS:1460:2005 (BIS standard for Automotive Diesel Fuel), therefore it being inconclusive can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce to this extent, the onus would thereafter shift upon the assessees to establish that these 14 tests cannot be said to be conclusive of the fact that the subject goods is High Speed Diesel. No such attempts have been made by the assessees. 9. The controversy that the goods have not been tested on all 21 parameters would not really make any difference and even on the basis of limited parameters the identity of the goods stands established in view of cogent and substantive evidence in the form of test reports by the two independent government laboratories. These test reports cannot be said to be incomplete or inconclusive. Consequently, the goods in question imported by the appellant were mis-declared as they were not Mixed Glycol and Base Oil but were Automotive Diesel Fuel, the import whereof is restricted only by State Trading Enterprises in terms of the Import Policy, 2017. Therefore, the impugned goods being Automotive Diesel Fuel was covered under CTH 2710 1944 and not under CTH 2710 1971 as per the declaration made by the appellant. 10. It also needs to be appreciated that Shri Sachin Singh, the proprietor of the appellant company in his statement dated 5.08.2021 rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td and M/s Petro Lubes India Ltd. The department relied on the import of Base Oil and Mixed Glycol by M/s Shobhag International Pvt. Ltd., where also the said importer was also importing Automotive diesel fuel by misdeclaring them during the same period and from the same country of origin, i.e., UAE at the rate of US$450 MTS, which was evident from the Whatsapp chat. Finding it to be a case of undervaluation, the value declared was held to be incorrect, which amounts to mis-declaration of the valuation by the appellant. Therefore, the value declared by the appellant of Rs.66,31,08,429/- was rejected and the same was redetermined at Rs. 79,57,301/- under Rule 4 and 5 of the Customs Valuation Rules, 2007, read with Section 14 and Section 17(4) of the Customs Act. I, therefore, uphold the demand on account of value difference as calculated by the Authority. 12. Having come to the conclusion that the appellant had mis-declared the goods, and therefore mis-classified them, which resulted in misdeclaration of the value of the goods, the authorities below rightly held that the goods were liable to confiscation under section 111(d)(f) and (m) of the Customs Act. The said goods are restr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in it was contended that the expression prohibition used in Section 111(d) must be considered as a total prohibition and that the expression does not bring within its fold the restrictions imposed by clause (3) of the Import Control Order, 1955. The Court negatived the said contention and held thus :- ..What clause (d) of Section 111 says is that any goods which are imported or attempted to be imported contrary to any prohibition imposed by any law for the time being in force in this country is liable to be confiscated. Any prohibition referred to in that section applies to every type of prohibition . That prohibition may be complete or partial. Any restriction on import or export is to an extent a prohibition. The expression any prohibition in Section 111(d) of the Customs Act, 1962 includes restrictions. Merely because Section 3 of the Imports and Exports (Control) Act, 1947, uses three different expressions prohibiting , restricting or otherwise controlling , we cannot cut down the amplitude of the word any prohibition in Section 111(d) of the Act. Any prohibition means every prohibition. In other words all types of prohibitions. Restrictions is one type of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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