TaxTMI 
TaxTMI 
2021 (10) TMI 820
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....Secondary/Defective TFSSD) and that in the said consignment Tin Sheets (secondary/defective Tin Sheets) were concealed; that earlier they imported Tin Coils mis-declaring it as Tin Free Sheets and that these goods are lying in the factory. On such information, officers of DRI searched the factory premises of the appellant on 22.06.2002. On verification of stock available in the factory premises, Tin Coils/Sheets totally weighting 65.4 MTs were found. Shri Prem Gupta, Partner of the firm stated that the said goods were part of the earlier consignments of 100MTs of Tin Coils, which they imported mis-declaring the same in the consignment of 167 Mts of TFSSD coils vide two bills of entry, dated 27.05.2002 and another bill of entry dated 16.04.2002. The goods weighing 68.4 MTs of Tin Sheets/Coils were seized under Mahazar dated 22.06.2002 as it appeared that the goods had been imported by mis-declaring the description, quality, quantity and value and in violation of provisions of Exim Policy which stipulated that secondary / defective Tin sheets has to be accompanied by pre-shipment certificate. 3. The live consignment covered under bill of entry dated 20.06.2002 lying at CFS was als....
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.....2002 as Tin Sheets/Coils falling under CTH 721090; (ii) The declared value of the goods covered under the above bill of entry should not be rejected; (iii) To fix the value of the goods at 465/MT for goods of Belgium origin and at USD 475/MT for goods of Germany origin covered under bill of entry dated 27.05.2002. Demand differential duty amounting to Rs. 7,43,752/- on 100 MTs on Tin Sheets/Coils, 68.4 MTs seized from their godown and 31.4 MTs also sold without bills; (iv) Demand duty of Rs. 7,79,287 on 48.851 MTs of Tin Sheets covered under bill of entry dated 20.06.2002 for live consignment; (v) To appropriate the amount of Rs. 6,89,000/- and Rs. 3,38,000/- deposited by the appellant towards duty liability for the past clearances and live consignments; (vi) Interest under section 28AB of the Customs Act, 1962 should not be demanded on the duty evaded in respect of past clearances; (vii) To confiscate 68.451 MTs of Tin Sheets/Coils seized from the godown valued at Rs. 15,64,525/-; (viii) To hold that 31.6 MTs of Tin Sheets/Coils valued at Rs. 7,22,792/- already sold by the appellant is liable for confiscation; ....
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.....851 MTs of Tin Sheet covered under B/E No.404351, dated 20.06.2002 valued at Rs. 11,20,005/- (CIF) u/s 111(d), (l), (m) of CA, '62 & 67.13 MTs of Tin Free Sheets Sec/Def valued at Rs. 8,59,776/- used for concealing the Tin Coils (S/D) u/s 119 of CA.'62. However, I give an option to the importer to redeem the above mentioned goods on payment of a redemption fine of Rs. 10,00,000/- [Rupees Ten Lakhs only]. I impose a penalty equivalent to the duty demanded along with interest payable thereon,on M/s. Baburam Premchand u/s 114A OF THE Customs Act,'62 in respect of past clearances. I imposed a penalty of Rs. 1,00,000/- (Rupees One Lakh only) on M/s. Baburam Premchand u/s 112(a) of the Customs Act,'62 in respect of the live consignment covered under B/E No.404351, dated 20.06.2002". 7. Against such order, the appellants had earlier preferred an appeal as Appeal No.C/00344/2003/MAS before the Tribunal and vide Final Order No.1260/2006, the matter was remanded to the adjudicating authority. The relevant portion of the Final Order is as under:- "The classification ordered under CTH 7210.90 in respect of goods covered by Bill of Entry No.404351, dated 20.06.200....
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....r dated 25.03.2008 was passed by the adjudicating authority against which the present appeal is filed. The operative portion of the de novo adjudication is as under:- (a) I reject the declared value for the goods covered under Bs/E No.11630 & 11612 both dated 27.05.2002 and 389691, dated 16.04.2002 and 404351, dated 20.06.2002 (live consignment). (b) I fix the value of the goods @ USD 465/MT for goods of Belgium origin covered under Bs/F No.389691, dated 16.04.2002 and 404351, dated 20.06.2002 and @ USD 475/MT for goods of Germany origin covered under Bs/E No.11630 & 11612 both dated 27.05.2002 under 6 of the Customs Valuation Rules, 1988. (c) I demand the differential duty amount of Rs. 7,43,752/- on both dated 27.05.2002 and 389691, dated 16.04.2002 under proviso to section 28(1) of Customs Act, 1962 along with applicable interest under section 28AB of the Customs Act, 1962. (d) I order levy of duty amount of Rs. 7,79,287/- on 48.851 MTs of Tin Sheets covered under B/E No.404351, dated 20.06.2002 (live consignment) on merits. (e) I appropriate an amount of Rs. 6,89,000/- & Rs. 3,38,000/-deposited by M/s. Baburam Premchand towards....
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....not available. The department has merely given a table showing some figures which is said to be value/price of contemporaneous import of similar goods. The appellant has not been supplied with any of such details in spite of specific direction of the Tribunal. Hence, the re-determination of duty merely on some figures given in the show-cause notice is highly arbitrary. (ii) The department has proposed in the show-cause notice to classify the quantity of 100 MTs of goods imported under various Bills of entry as Tin Sheets/Coils (Second/Defective) of width 600 mm under CTH 721090. However, the duty has been demanded treating these goods as virgin TFS sheets/Coils. (iii) The entire proceedings are bad and unsustainable in law as imported goods by earlier Bills of Entry were examined and cleared by proper officers of Customs. (iv) The original authority has observed in his order that the minimum floor price of USD 465/MT for import of TFS has been fixed by the Ministry of Commerce and that if the import price was lower, license is required for import of goods. No such averments have been made in the show-cause notice issued to the appellant. These observation....
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.... in the case of Quantum Coal Energy P. Ltd. Vs Commissioner reported in Writ Petition (MP) No.10186-10187 of 2014 judgment dated 16.03.2021 to argue that the officers of DRI have no power to issue show-cause notice for demand of duty under section 28 of the Customs Act, 1962. 10. The learned Authorised Representative Shri S. Balakumar appeared for the department. He supported the findings in the impugned order. 11. Heard both sides. 12. At the outset, it has to be stated that the Tribunal vide its earlier Final Order, dated 11.12.2006 had remanded the matter with specific direction to supply copies of the details regarding the contemporaneous imports of similar goods which has been made the basis for enhancing the value of the imported goods and for re-determining the duty. In spite of such specific direction, the department has not provided the evidence regarding contemporaneous imports. In para 25, the original authority has discussed this issue, which is noteworthy and reproduced as below:- "In view of the misdeclaration of the goods, the value declared in the import documents cannot be taken as the transaction value for the purpose of assessment in terms of se....
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....from which source they have obtained the figures in the above table. Even after several stages of litigation, the department has not been able to throw any light on these aspects. It is also pertinant to note that appellant has raised this contention in the very first stage itself . We have to conclude that the enhancement of value of goods merely on the basis of figures given in the table of the Show-cause notice has no legal basis. 14. We, therefore, hold that the enhancement of value of the goods as well as re-determination of duty/differential duty cannot sustain and requires to be set aside, which we hereby do. 15. The appellant has put forward contentions challenging the confiscation of goods as well as imposition of redemption fine and penalty. As we have set aside the enhancement of value, duty demand, the order of confiscation of goods as well as imposition of redemption fine and penalties cannot then sustain. The same are set aside. On merits the appellant succeeds. 16. The learned counsel has also put forward arguments challenging the jurisdiction of DRI to issue the show-cause notice. He relied on the decision of The Hon'ble Apex court in the case of M/s. Canon....