TMI Blog2001 (7) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... contain aluminium scrap "Throb", one was found to contain aluminium ingots and fourth one was found to contain aluminium plates; that the container imported by Venus Metal, was found to contain, in addition to aluminium scrap, copper scrap also. The Commissioner of Customs, under the impugned Order, confiscated the goods with an option to redeem the same by Ankur Metal and Venus Metal on payment of redemption fine of Rs. 15 lakhs and Rs. 5 lakhs respectively; confirmed the demand of duty invoking extended period of limitation and imposed penalty of Rs. 10 lakh on M/s. Manju Khandelwal, Proprietor of Ankur Metal Bhandar, Rs. 10 lakh on Shri Mukesh Kumar Khandelwal who managed the affairs of Ankur Metal; Rs. 5 lakh on Shri Rajendra Kumar, Proprietor of Venus Metal Bhandar; Rs. 5 lakh on Shri Pawan Goel and Shri Anil Kumar Goel, Director of M/s. Kunal Metal (P) Ltd. in whose godowns the three containers were found and seized; Rs. 5 lakh each on Shri Gautam Chatterji and M/s. SCC, CHA. 3.Shri L.P. Asthana, learned Advocate, mentioned that the goods were examined by the Customs Authorities and thereafter these were cleared on payment of duty as assessed. The learned Advocate, however ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or exemption cannot be considered as misdeclaration warranting confiscation under Section 111(m) of the Customs Act. The learned Advocate contended that in view of this no penalty is imposable on the Appellants. 4.He further mentioned that the value has been enhanced in the impugned Order on the basis of LME prices; that LME prices are only indicative prices which cannot form the basis for determining the assessable value. Reliance was placed on the decision in the case of Ruchi Associates v. Collector of Customs, 1992 (59) E.L.T. 155 (T) which has been confirmed by the Supreme Court as reported in 1992 (61) E.L.T. A134 (S.C.). He also contended that there were no contemporary imports of identical goods made by other importers; that LME bulletin only gives the average price and does not indicate the actual prices; that moreover the appellants is not able to find out from LME on what basis the value of aluminium scrap of comparable quantity has been taken as US $ 750 PMT; that in January 1999 the LME prices were US $ 510-540 PMT. The learned Advocate, further, mentioned that there was no justification for rejecting the transaction value of the goods as none of the factors in provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kunal Metal cannot be a ground for imposing penalty under Section 112 of the Customs Act; that even if an employee of Kunal Metal had accompanied the driver of the trailer; that by itself could not be a ground for imposing penalty unless there is proof to show that they were aware of any irregularities with regard to the import; that there is no iota of evidence in respect of findings contained in Paragraph 10.1 of the impugned Order. He also submitted that no penalty is imposable on Gautam Chatterjee merely for the reason that he was present at the time of initial examination of the goods; that he was not aware of any discrepancies with regard to goods nor he had any personal knowledge about the valuation of the goods. He also mentioned that no penalty is imposable on Ms. Manju Khandelwal as she has done nothing in relation to goods as even according to Department, Mukesh was managing all the affairs of Ankur Metal; that there is no justification in imposing penalty of Rs. 10 lakh each on both Manju and Mukesh; that in any case penalty is highly excessive considering the amount of duty involved in the matter. 7.Arguing on behalf of M/s. Venus Metal Bhandar, the learned Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rap Recycling Industries, Inc. Trump is defined as under :- "TRUMP - Aluminium Auto Castings shall consist of all clear automobile Aluminium Castings of sufficient size to be readily identified and to be free from iron, dirt, brass, babbitt bushings, brass bushings and any other foreign materials". The Appellants had clearly averred, in their reply dated 2-8-2000 to the show-cause notice, that the rims found were old and second hand as mentioned in the Panchnama itself and are to be described as aluminium scrap-Trump. In absence of any rebuttal, we hold that there was no misdeclaration in respect of this Bill of Entry. 10.Though the Appellants have not disputed about the classification of the product in respect of Bills of Entry No. 304975 and 304987, they have contended that there is no misdeclaration as they had made the declaration as per invoice which described the product as "Aluminium Scrap-THROB". They have contended that according to ISRI Code, THROB is defined as "Sweated Aluminium shall consist of aluminium scrap which has been sweated or melted into a form or shape such as an ingot, pig or slab for convenience in shipping; that it is thus clear that THROB comes in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... buying levels. The Tribunal held therein that "the theoretical prices worked out based on the LME Bulletin cannot be accepted as the basis in the absence of any corroborative evidence of the import at the prices indicated". This decision has been confirmed by the Supreme Court as reported in 1992 (61) E.L.T. A134. It is well settled law that onus of proving that the transaction value does not represent the value for assessment and it has to be loaded is on the Department. It has been held by the Apex Court in Eicher Tractors Ltd., supra, that subject to three conditions laid down in Section 14(1) of time, place and absence of special circumstances the price of imported goods is to be determined under Section 14(1A) in accordance with the Customs Valuation Rules. "Reading Rule 3(i) and Rule 4(1) together, it is clear that a mandate has been cast on the authorities to accept the price actually paid or payable for the goods as the transaction value" and "unless the price actually paid for the particular transaction fall within the exceptions," [specified in Rule 4(2) of the Customs Valuation Rules] "the Customs Authorities are bound to assess the duty on the transaction value. It is n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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