TaxTMI 
TaxTMI 
TaxTMI 
2019 (2) TMI 1572
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....oms officer at ICD, TKD, on 04/05/2013, were put on hold for further examination by the DRI. The consignment, which were opened by the Customs Officer at ICD Tuglakabad, New Delhi, contained in container No. TRLU5861009, were re-sealed after initial opening thereof. These consignments were again re-examined on 05/06/2013, by the DRI officer under Punchnama and the samples of the fabrics in the container were drawn for further investigation. The samples drawn were forwarded to Central Revenue Control Laboratory, New Delhi, (CRCL) for testing vide letter dated 06/06/2013. After the receipt of the reports from CRCL, New Delhi, were found as below mentioned against the declared imported goods(fabrics); Table-1 Sl No. Samples No. Description of goods as per test report received from CRCL Description of goods as per declaration 1 A-1 Twill weave, width 58". Cotton yarn 56.8%; polyester texturised multifilament yarn 40.4 %; elastomeric yarn balance (2.8%) made of yarn of different colour. GSM 4117 Cotton Plain dyed fabrics (Width 58") GSM-260+/- 10% 2 B-1 Twill weave. Width 58" Brown coloured cotton yarn 99.2 %, elastomeric yarn balance (0.8 %). Not made of yarn of different c....
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.... 30.58%). However he has not admitted that description given at the time of filing of Bs/E were incorrect and incomplete, on the bonafide belief that goods contained in the consignment is as per declaration. He also agreed that as per his understanding the items on Sl. NO 1,3 and 6 (A1 C1 & F1) will be classified under heading 52 122 400 and item at Sl No. 4 (D1) will be classified under heading 55 164200 of Customs Tariff Act, 1975, and the differential duty as per changed classification would be around Rs. 6.50 lacks and he also volunteered to deposit the same and accordingly the it was deposited by him vide two demand drafts of Rs. 3.50 lakhs and 6.50 lakhs, towards the differential duty as additional of the duty liability. 4. Shri Desai, in spite of repeated demand by the investigating officer, could not produce the manufacturer's invoice in respect of imports made by the appellant. This was explained to be on account of the fact the consignments were pooled from different China based exporters who exported their goods through a merchant exporter, as they were small manufacturers based in China. Regarding the inquiry about the past clearance of the similar nature during period....
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....hearing in reply to the Show Cause Notice and adjudicated the case contrary to the provisions of Customs/Law and procedure. 7. Regarding the first issue in respect to live Bill of Entry No. 2293952, he would submit that the said Bill of Entry was filed declaring the goods as per the invoice having assessable value of Rs. 27,02,398/- and the duty payable thereon, after the self assessment, which was Rs. 7,79,692/-. The goods were examined on 04/06/2013, and the container was re-sealed the due to communication from DRI. No panchanama was drawn at opening of container, although the goods were examined and container was re-sealed and thereafter again re-examined on 05/06/2013 and punchanama was also drawn. The six samples, were drawn from the containers for test, however, samples were not provided to the main appellant. Thereafter, on the basis of the report from CRCL, the goods listed at Sl. No A, C, F (1), (3) and (6) were classified under CTH 52114390 (duty structure BCD 10 % or Rs. 32 per square meter whichever higher) in respect of declared CTH 52093290 (duty structure BCD 10%). Accordingly, the differential duty of the goods listed at Sl. No 1 ,3, 6 of A, C, F were calculated to....
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....ills of Entry was based on the documents supplied by the exporter which were not doubted and thus there is no scope of invocation of Section 111(m) of the Customs Act, 1962 (for short 'Act') hence the goods would not be liable for confiscation, relying on the decision of Hon'ble CESTAT in case of Shri Ganesh International vs. CCE, Jaipur [2004 (174) ELT 171(Tri-Del)], following the decision of Hon'ble Apex Court in case of Northern Plastics vs. Collector, [1198( 101) ELT 549(SC)]. He would further submit that the present Show Cause Notice was issued after the lapse of 6 months from the seizure, the department should have returned the BG and money deposited at the time of provisional assessement as held in case of M/s Jatin Ahuja vs Union of India reported in 2013 (287) ELT 3(Del) , by the Hon'ble Delhi High Court. 11. Regarding the second issue, pertaining to imports made under 18 Bills of Entry for period 2011-13, Ld. Advocate would submit that the consignment were re-assessed based on the report obtained from First Secretary (COIN) by the Department. The Report was based on the information collected from Anti Smuggling Board, General Administration of Chinese Customs. Shri Deepa....
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.... charge order, after their full satisfaction. At the time of examination goods imported were found to be as per declaration. 12. Ld. Advocate, therefore, submitted that the subject letter and report of COIN has no evidentiary value and could not had been relied upon in the process of adjudication. The request of cross-examination of Shri Aron and the Officer of Chinese Customs, who had allegedly issued the report to DRI officer, and also who has prepared the chart annexed with the Show Cause Notice as RUD 12, was denied by the Ld. Adjudicating Authority, as is evident from the impugned order. The law relating to admissibility of evidence collected from foreign country in domestic inquiry is no more re integra, and has been settled by Hon'ble Supreme Court in the matter of East Punjab Tractors [1198 (089) ELT (11) (SC)] followed by subsequent judgments, including the judgment of No. A/3446/3470/15/CB dated 20/10/2015, rendered by Mumbai Bench of Hon'ble Tribunal in the matter of Ajay export. Thus Ld. Advocate submits that impugned order is not legal and proper thus not sustainable. 13. Ld. AR on behalf of the Revenue contended that in this case the appellant has mis-declared the c....
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....icient ground to treat the process of examination to be illegal and not permissible under Customs Act. The seizure has been affected by the DRI on 02.07.2013, which was provisionally released on 16.07.2013 under Section 110 A of Customs Act by execution of the bond on full value of the detained consignment supported by security of 20 % of the value of goods (Rs.3.50 Lakhs DO/ BG). It is undisputed input in this case. Show Cause Notice has been issued on 21.01.2016, as the seizure was made under Section 110A (2) of the Act and no extension was permitted by the Adjudicating Authority for issuance of Show Cause Notice under the proviso 2 the Section 110 of Customs Act. But as the goods stands provisionally released, the Department is not precluding issuing Show Cause Notice under Section 124(a) of Customs Act, as there is no time period fixed for issuance of such Show Cause Notice reliance is placed as under; (i) Mohan Lal Devder Lal Choksy vs. M. P. Mandka [1988 (37) ELT 528] (ii) Harbans Lal vs Collector of Customs and Central Excise [1993(67) ELT 20 (SC)] 16. Accordingly the confiscation of the goods and imposition of penalty as proposed in the Show Cause Notice is patently pe....
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....The mere fact that there were wide variations between the test results arrived at by the Textile Committee and CRCL will not make any difference as much as there is nothing on record to show that the impugned goods contain 85% or more by weight of non-texturised polyester filament. The appellants have not brought on record any test report showing that the impugned goods contain non-texturised polyester filament 85% or more by weight. They have only referred to the Test Certificate given by the foreign supplier. The perusal of the said Test Certificate reveals that the supplier has only stated that the goods are non-texturised fabrics without indicating the contents of the texturised polyester filament. In view of this, this Certificate is of no importance. On the other hand, the Revenue has brought on record, the test report given by CRCL. Accordingly, we hold that the impugned polyester fabric is classifiable under sub-heading 5407 69 00 of the Customs Tariff. 8.We, however, agree with the learned Advocate that the impugned goods are not liable for confiscation. It has not been denied by the Revenue that the appellants have made the declaration on the Bills of Entry on the basis....
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....) [2004 (172) ELT 145(SC)]. We also find that the email which is received from the Chinese customs officials indicated that the further information would be supplied to them. However, there is no indication any such report by the DRI. We also find that the appellant has asked the cross-examination of the COIN officer which was not permitted by the Ld. Adjudicating Authority on the ground that the entire facts have been made available to the appellant. Also we find there are certain other evidences which were supposed to come subsequently vide the email which was not provided to the appellant by the DRI. Further, we also find lot of force in the argument of Ld. Advocate that the documents supplied to them are un-authenticated copy of the report received from the Chinese customs. There could be various reasons for declaring the higher value to the Chinese customs, which may itself be a cause of inquiry by the concerned Chinese authority. It has been not shown to us that after having been made aware of the two export invoices, whether any investigation had been carried out by the Chinese authority so as to acertain as to which one is genuine export invoice. The COIN officer had also n....
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.... documents were relied upon, which could not be used, even if they may have been forwarded by 'authorities' to the investigating agency through official channels. This law is settled by Apex Court in the case of East Punjab Traders (supra) 21. Further it is also seen from the record submitted by the appellant that the declared transaction value is in range of the value available for identical goods the NIDB/DOV data, which is vindication of appellant's claim for the declared import price. The Adjudicating Authority had to examine and consider the value indicated in NIDB/DOV, as has been held by Hon'ble Tribunal in the matter of Techtronic India [2006(203) ELT 301] and A M Impex [2013(287) ELT 197 (Kol)]. 22. Ld. Advocate also submitted that the calculation of the duty itself is not appropriate by the DRI authority as the Report of the COIN is not matching with those of export documents during the relevant period. As in some of the cases the information collected was with container no. only. No invoices were submitted by the Chinese exporter which were complete n all respect through DRI. Accordingly credibility of such data is not accepted for assessment, as held in American Alm....