TaxTMI 
TaxTMI 
2021 (12) TMI 744
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.... 112 (a) and 114AA upon the importer. The operative part of this order was as follows :- "(i) I order the finalization of Provisional Assessment under Section 18 (2) of the Customs Act, 1962 in respect of Bills of Entry Nos. 2664896 dated 21.09.2015, 2841915 dated 07.10.2015, 2949338 dated 16.10.2015, 3100416 dated 30.10.2015, 3230620 dated 12.11.2015, 3230619 dated 12.11.2015, 3230624 dated 12.11.2015, 3579280 dated 14.12.2015, 3579822 dated 14.12.2015, 3579858 dated 14.12.2015, 3666482 dated 21.12.2015, 3666610 dated 21.12.2015, 3758281 dated 30.12.2015, 3810839 dated 05.01.2016, 3850993 dated 08.01.2016, 3979345 dated 20.01.2016, 3978633 dated 20.01.2016, 4007532 dated 22.01.2016, 4007199 dated 22.01.2016, 4181409 dated 08.02.2016, 4181407 dated 08.02.2016, 4313461 dated 19.02.2016, 4396390 dated 26.02.2016, 4394604 dated 26.02.2016, 6253308 dated 05.08.2016 and the imported items will be correctly held to be Embroidery 1Impugned order Beads/Stones (Plastic content of Acrylic/ABS/PS & ABS/ABS & PMMA - as reported by CIPET) ; (ii) I order confiscation of the imported goods under Section 111 (m) of the Customs Act, 1962 but allow the said importer to redeem the goods on ....
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....with the Customs Valuation Rules, 2007 for rejection or acceptance of the declared value, as the case may be, at the time of assessment of such goods". 4. Pursuant to the above letter of Director General of Valuation, the SIB of the Commissionerate of Customs (Port), Kolkata issued Office Note dated 03.09.2015 in which it has calculated and determined the prices of Beads/Stones on the basis of the prevalent price of various polymers (RUD 1 of the show cause notice). It has been alleged in the show cause notice that importer has mis-declared the value and accordingly the assessment was proposed at a higher value. It was also proposed in the show cause notice to confiscate the imported goods under Section 111 (m) and impose penalty upon the appellant under Section 112 (a) of the Customs Act. No proposal was made in the show cause notice to impose penalty under Section 114AA. The findings of the learned Commissioner in paragraphs 9 to 12 of the impugned order were as follows :- "9. I have gone through the case records and the submissions made by the said importer. Two main issues are to be decided. The first is regarding the finalization of the Provisional Assessment as per proviso....
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....sued the subject SCN, though not relied upon in this adjudication, is generally indicative of the undervaluation in this case. There is no scope for any further re-test as CIPET is a Government recognized testing agency under Ministry of Chemicals & Fertilizers. I find that the test results were given to the importer-noticee as RUD-3 of the SCN and later they were given the copies of the Test Reports by Custom House, Kolkata through letter - F. No. S206 (Misc)-43/2016A Gr. - II dated 21.3.2017. The importer had declared the impugned goods in all the 25 Bills of Entry simply as "Embroidery Beads/Stones" which is a deliberate and willful act of suppression and mis-representation with malafide intent as said above. 12. The importer made an incorrect declaration before the Customs authorities with an intention to misguide the assessing officer and defraud the revenue. Moreover, if the importer was unsure of the composition of the impugned goods, he should have subscribed to a declaration before the proper officer, that he was unable, for want of full information, to furnish all the particulars of the goods required, in view of the proviso to Section 46 (1) of the Customs Act, 1962, b....
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....es (plastic content of acrylic/ABS/BS &ABS, ABS & PMMA). The Commissioner observed in the impugned order that the test results from CIPET mis-match of the description of the goods provided in the bills of entry by the importer. From a plain reading of the two descriptions, it is clear that the description in the test report is only more elaborate and describes the composition of the goods. It nowhere says that the imported goods were not Embroidery Beads/Stones, therefore, by no stretch of imagination can the importer's action be called misdeclaration of the goods. For instance, if a consignment is described as shirts and on testing we found to be shirts made of cotton or polyester it does not mean that they were misdeclared. While assessing the bill of entry, if the assessing officers were not satisfied with the description and wanted more details, they could have sought there from the importer. It is evident from the test report and the description of the goods as recorded in the impugned order itself that the goods were exactly as they were described. Coming to the rejection of the declared value and re-determination of the value as proposed in the show cause notice, it is based....
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....these cases cannot be rejected and assessment cannot be finalized as per the Office Note of the SIB. Valuation has to be done as per Section 14 of the Customs Act, 1962, i.e. as per the transaction value and if there is reason to doubt the truth and accuracy of the transaction value the reason has to be recorded and after rejecting the transaction value, the correct value should be determined as per the Customs Valuation Rules. There is not even a suggestion in the show cause notice that the transaction value of the imported consignments was not correct or there was relationship between the buyer and seller or that there was any additional consideration for sale or the value was manipulated in any other manner. Therefore, the learned Commissioner was correct in accepting the value declared by the importer and ordering finalization of the provisional assessment accordingly. Confiscation of the goods under Section 111 (m) and imposition of redemption fine :- 12. Learned Commissioner has, in the impugned order, held that the appellant has mis-declared the goods and the description of the goods in the bills of entry was "Embroidery Beads/Stones" whereas they were found to be "Embroid....