TaxTMI 
TaxTMI 
2009 (1) TMI 693
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....' company, demanded differential duty on the ground that appellant's company had undervalued and misdeclared the goods amounting Rs. 87,76,513/- with interest as applicable and has also imposed penalty of Rs. 87,76,513/- on the company and Rs. 10,00,000/- on the Managing Director. 2. Shri T. Vishwanathan, learned advocate, on behalf of the appellants submitted the following points in support of the application for stay and waiver of pre-deposit. 2.1 There was no misdeclaration at all. The heading proposed by the department is 7013 32 00 whereas the heading under which the goods were classified was 7013 39 00. Both headings covered only glassware. 2.2 The supplier had also given a certificate that Opalware is classifi....
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....er. 2.11 The Rule 6 of Customs Valuation Rules has been applied in their case but the prices indicated in February and March 2004 cannot be adopted for the imports made in 2005 onwards. 2.12 The appellants had also submitted export declaration filed by M/s. Wenzhou at the time of export of the goods which show that the price declared by them is correct. 3. In view of the above he submits that they have a very strong case on merits and therefore stay petition may be allowed unconditionally and the requirement of pre-deposit waived. He also submits that they have provided a bank guarantee of Rs. 1,55,69,567/- provided by them for the purpose of provisional release of the goods which were seized at various places and th....
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....ier M/s. Wenzhou and they were engaged only in the manufacture of Opalware. 4.5 Supporting evidence regarding undervaluation was available in the form of e-mail correspondence between another importer KP International with the supplier and recovery of parallel invoices from M/s. VHMPL which support the cases of the Revenue. 4.6 Further, during the search operations, it was revealed that the Opalware was received in two packings. The outer packing had the writing as "Treo", item name, item code, design number, standard packing, case numbers while the inner boxes were found to be printed with details such as premier imported Opalware micro wave proof, dish washer safe, chip resistant and freeze resistant. 4.7 Further, ....
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....he description on the outer packing and description in the inner packing were corresponding to glassware and Opalware respectively. The fact that outer packing description was glassware and inner packing described the product as Opalware and further indicating that the product is micro wave proof, dish washer safe, chip resistant and freeze resistant also supports the contention of the Revenue that appellants had misdeclared the description of the goods to show as if it is ordinary glassware to facilitate undervaluation. Further the Managing Director, Commercial Manager, General Manager have all admitted that what they had imported was Opalware and they have also admitted that the price of Opalware is almost double that of glassware. In add....
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....of Rs. 10 lakhs on the Managing Director also cannot be considered excessive. (vi) The Hon'ble Supreme Court in their judgment Union of India v. Dharamendra Textile Processors - 2008 (231) E.L.T. 3 (S.C.) has ruled that penalty under Section 11AC of Central Excise Act, 1944, is mandatory and in view of the fact that Section 114A of Customs Act is pari materia with Section 11AC, the penalty equal to the duty imposed by the Commissioner also is as per law. (vii) The learned advocate offered to keep the bank guarantee alive till the appeal is decided. However, the Hon'ble Supreme Court had observed that the country cannot be run on bank guaranties and therefore this offer cannot be considered. (viii)  ....