TMI Blog2008 (12) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... find that in the facts of the case there was no mis-declaration by the importer to attract confiscation of the impugned goods under Section 111(m) of the Act. - Confiscation of gear oil under Section 111(m) and the penalty under Section 112(a) are therefore not sustainable. The fine and penalty are set aside. The appeal is allowed by way of remand. - C/554/2006 - 1483/2008 - Dated:- 23-12-2008 - Shri P. Karthikeyan, Member (T) REPRESENTED BY : Shri L. Kandiah, GM, for the Appellant. Shri N.J. Kumaresh, SDR, for the Respondent. [Order]. - M/s. N.C. John Sons Pvt. Ltd., Tuticorin, are aggrieved by an order of the Commissioner (Appeals) dated 24-8-06, which affirmed an order of the original authority treating a quantity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the gear oil in question was of market value ranging from Rs. 70/- to Rs. 80/- per litre. They had also furnished the evidence in the form of quotations from persons dealing in such goods in the Indian market. The authorities had arbitrarily fixed the unit price at Rs. 525/- per liter for the purpose of the proceedings. The appellants were not informed of the legal basis for determining the assessable value of the oil at Rs. 525/- per liter. No samples were taken to ascertain the quality of the oil for determining a fair and reliable value. The finding of liability to confiscation and penalty was assailed on the basis that the value of the item was covered by the price negotiated and fixed for the spinning machine in question. As there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessable value of the gear oil was determined without furnishing the material relied on by the authorities to the importers. Moreover, the material relied on to determine the value cannot be held to have been reliable as the impugned goods were not tested for its chemical composition or quality by the customs. It has to be held that the assessable value was determined arbitrarily. In the circumstances, it would have been more reasonable to accept the quotations furnished by the importer to determine the assessable value. The matter is therefore remanded to the original authority to re-determine the duty liability on the impugned goods. As regards the confiscation and penalty, I find that in the facts of the case there was no mis-declarati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find, has to be accepted as genuine. 6. In so finding, I am fortified by the decision of the Tribunal in Shree Ganesh International v. Commissioner of C. Ex., Jaipur [2004 (174) E.L.T. 171 (Tri.-Del.)] wherein the Tribunal had vacated confiscation, finding that the charge of deliberate misdeclaration was not sustainable when the importer had declared the goods in the Bill of Entry as per the shipping documents. Confiscation of gear oil under Section 111(m) and the penalty under Section 112(a) are therefore not sustainable. The fine and penalty are set aside. The appeal is allowed by way of remand. Appellants shall be heard. The appellants are free to furnish bills for purchase of such gear oil as imported, in support of its market value f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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