2016 (11) TMI 173

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....-in-Original No. & Date Quantity Imported Quantity confiscated Amount Fine Penalty 1. C/ 1219/05   C/ 1246/05 M/s. Viraj Impex Pvt. Ltd. vs. CC (Export) , Mumbai CC (Export), Mumbai Vs. Viraj Impex Pvt. Ltd. 91/ CAC/CC/ CMM 22.9.2004 3600.970 M.Tons 445 M.Tons Rs. 6,50,000/- Rs. 3,50,000/- For enhancement  of redemption fine and penalty 2. C/ 1233/05 Hariyana International P. Ltd. vs. CC (Export, Mumbai 90/2004/CA C/CC/ CMM dt. 28.9.2004 1396.56 M.Tons 173 M. Tons Rs. 3,00,000/- Rs. 1,00,000/- 3. C/ 1242/04   C/ 1244/05 Shah Brothers Co. Vs. cc (Export) Mumbai CC (Export), Mumbai V....

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....e DFRC licenses. As per the examination, it was found that about 3% to 8% of the goods had defects. Pending further investigation, 57% of the goods which had no apparent defects were allowed to be cleared and remaining 43% were detained and warehoused. The SIIB obtained a report from IIT as per the report, the Chemical Composition was found within specified range. However the physical examination revealed 26.3% of the goods are of non-prime quality. Show cause notice was issued proposing the said 26.3% of the goods liable for confiscation under Section 111(m) of the Customs Act, 1962 for mis-declaration and the same are not eligible for clearance under the DFRC licence. The adjudicating authority confiscated the goods with an option to rede....

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....chemical composition, it is the same goods. Irrespective of some minor defects noticed will not alter the product declared and imported by the assessee. Therefore on both the count it cannot be said that there is a mis-declaration. Consequently, the goods were neither liable for confiscation nor the clearance under DFRC license be denied. In support, he placed reliance on the following judgments: (i)      Haji Sattar Haji Peer Mohammed Vs. Collector of Customs   2000 (125) E.L.T. 322 (Cal.) (ii)     Shree Ganesh Agencies Vs. Collector of Customs, Madras  1999 (112) E.L.T. 185 (Tribunal) (iii)    Award Packaging Vs. Collector of Central Excise, Bombay-I 1994 ....

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....s declared by the appellant the import of non-prime quality of goods is a mis-declaration therefore the goods are liable for confiscation and also not eligible for clearance under DFRC licenses being different goods. As regard the department's appeal, he submits that adjudicating authority confiscated the goods of non-prime quality and imposed the fine and penalty commensurate to the value of defective goods only, whereas the entire goods was liable to be confiscated. Accordingly enhanced the redemption fine and penalty should have been imposed by the adjudicating authority. 4. We have carefully considered the submissions made by both the sides. We find that the entire case was made out on the basis that a part quantity of the ....