TMI Blog2001 (3) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty of Rs. 1 lakh under Section 112(a) on the importer. He also demanded appropriate customs duty on the misdeclared goods sought to be evaded amounting to Rs. 19,84,514/- 2. The appeals are being decided by this common order, after hearing both sides and considering the submissions made and the application filed on behalf of the importers Advocate Shri R. Raghavan, on 20-2-2001 in the Court. 3. We have considered the matter and find - (a) Briefly stated, the matter is an import made in this case of watch parts by the appellant, a well known manufacturer of watches in India in the course of regular trade, for actual use. The Bill of Entry was filed on 28-12-1994 and was assessed on the same date and duty was paid on 29-12-1994 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r side concerning the missing PLI gaskets and PHD 5 crystals; both gaskets and crystals FHD 5 were duly packed by them and in respect of 5150 gaskets; they shipped 5150 only and the number 5510 is a mistake in the invoice. From this, it is evident that the supplier has not accepted the discrepancy entirely due to their purchase order, it has not been explained how they have not initiated suo motu action to rectify the defect in supply, whereas they have chosen to wait for the customs examination to be completed before taking any further action. If there had been any mistake in the supply, the supplier would have immediately clarified, whereas in the supplier's letter dated 10-1-1995 wherein a reference has been made to their conversation wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned two purchase Order Nos. 16751 and 18460, instead of verifying the same, the clearance was sought. Therefore the direction exercised by the adjudicating authority should be interfered with and the fine and penalty should be enhanced. (d) Considering the appeal of Revenue we find that neither the order-in-original, nor the appeal paper book has relied upon and or indicated any material as to what should be or could be the 'Market Price' of the goods under import. In absence of this vital material we cannot measure the adequacy or otherwise of the redemption fine. Section 125 of the Customs Act, 1962 provides the formula to determine the quantum of fine and that is based on Market Price less the duty chargeable therein, facts and circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. We would instead follow the decision in the case of Indian Sugar General Engg. Co. - 1995 (77) E.L.T. 907 (Tribunal) wherein considering the importers to be Actual Users the penalty of Rs. 1 lakh imposed was set aside even though a licence offence was established by the Tribunal. However, the order of confiscation on merits, of goods valued at 15.77 lacs was sustained. We find that in this case there are no reason for ordering a penalty under Section 112(a) on the importers, keeping mind the Actual User Status and the fact that there was no Licence involved for imports made in this case. (f) We have considered the submissions made by the learned Advocate, Shri R. Raghavan that no show cause notice was issued as regards the demand of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, find no reason for the confiscation and penalty in this case to revive, since the duty demands could not be made. (h) We have considered the application filed by the learned Advocate, Shri Raghavan in the Court on 20-2-2001, submitting that the duty already paid by them is not being contested. We therefore find, no reason to set aside the order as regards duty and remand the same back for de novo determination of the demands of duty as prescribed under Section 28(i). (j) We find that the importers had given a letter for amendment of the Bills of Entry. We do not find any decision on this amendment, therefore we do not uphold the findings of misdeclaration as arrived at by the adjudicator. The very fact that two purchase orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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