TaxTMI 
TaxTMI 
2022 (11) TMI 868
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....t had imported. On examination of the imported consignment, it was found that the quantity actually imported was much more than what was declared in the Bill of Entry and other documents. 5. The appellant gave a letter dated 22.9.2017 waiving the issue of a show cause notice. During examination, it had not contested the examination report. The Additional Commissioner passed an order dated 22.9.2017 the operative part of which is as follows: "(i) I order to assess the offending goods i.e. 831.70 Sqr. Mtr. Polished Marble Slabs at a unit price of USD 40/Sqr. Mtr. Imported vide Bill of Entry No. 2932417 dated 21.08.2017 and confirm total assessable value of Rs. 21,89,084/- for said offending goods. (ii) I confirm the demand of additional duty of Rs. 11,90,161/- (Rupees Eleven Lakh Ninety Thousand One Hundred Sixty One only) on the offending goods. (iii) I order for confiscation of the offending goods having assessable value of Rs. 21,89,084/- under Section 111 (1) of the Customs Act, 1962. However, I give an option to the importer to redeem the same on payment of Redemption Fine of Rs. 5,00,000/- (Rupees Five lakh only) under Section 125 of Customs Act, 1962. (iv) I also impo....
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....er dated 17/02/2020 the Tribunal remanded the matter to the Commissioner (Appeals) to decide the appeal on merits. 10. After examining the appeal on merits, Commissioner (Appeals) passed the impugned order upholding the order of the Additional Commissioner dated 31.7.2018. 11. The appellant filed this appeal assailing the impugned order on the following grounds: a. The appellant gave the letter dated 20.9.2017 accepting the mis-declaration under duress. b. The quantity of marble imported was only 1192.30 square metres as indicated in the invoice and packing list and not 2530 square metres as per the examination report which was further reduced to 2024 square metres after allowing 20% abatement towards corner cuts. c. That they should be given an abatement of 35% instead of 20% of the marble imported towards corner cuts allowed by the adjudicating authority. d. The examination was done without following any particular method. e. Some of the goods were damaged with hair line cracks, bubble marks, chemical damages, etc., which were not taken into account. f. The quantity of 1192.30 square metres which was declared in the Bill of Entry must be released to it on payment of....
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....need not to be proved. i. The mis-declaration is categorical and clear. Confiscation under section 111(l) is correct and so is the imposition of Redemption fine under section 125 of the Act and Penalty under section 112(a) of the Customs Act. 14. We have considered the submissions in the appeal and the submissions made by the learned authorised representative for the Revenue and perused the records. The issues which fall for consideration in this case are: a) Did the appellant mis-declare the quantity of the polished marble slabs which it had imported? b) Were the letters accepting the measurement given by the appellant accepting the examination and waiving the show cause notice given under duress? c) Can the appellant's prayer to accept the quantity declared in the invoice and packing list as the actual quantity imported be allowed? d) Do any changes or hairline cracks or chemical damage in the middle of the marble slabs, alter the quantity of the marble imported? e) How much, if any, abatement should be considered towards the corner cuts? f) Was the quantity of marble which was mis-declared liable for confiscation? g) Is the quantum redemption fine imposed by the....
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....enue. 16. The appellant's prayer to accept the quantity declared in the invoice and packing list cannot be accepted for the reason that duties of customs under section 12 of the Customs Act, 1962 must be levied and all the restrictions and prohibitions are to be applied on the goods imported into India and NOT on the goods declared to be imported into India. While import documents usually reflect what has actually been imported, if there is a difference between what is declared and what is actually imported, the duty and prohibitions are to be applied on what is actually imported. If X quantity is declared in the import documents and Y quantity is actually imported, duty has to be levied on Y quantity. For instance, in oil imports, the quantity declared in the Bill of Lading based on the Ullage Report and the quantity actually imported as per the Shore Tank readings are often at variance with each other. Duty has to be paid on the shore tank quantity. Conversely, if a larger quantity of goods is imported than what is declared in the documents, duty has to be charged on such larger quantity. If the import documents declared the goods to be, say, iron, and actually gold is imported,....
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....ss sale proceeds shall be deemed to be the value of such goods. 18. Section 12 of the Customs Act- the charging section mandates levy and collection of duties of Customs on all goods imported into India. Section 22 carves out an exception and provides for abatement of duty if the goods were damaged: a) Before unloading; b) During unloading; or c) After unloading but before their examination due to any accident and not to wilful act or negligence or default by the importer 19. To claim abatement under section 22, the importer has to prove to the satisfaction of the Assistant Commissioner/Deputy Commissioner that the damage occurred before unloading or during unloading or after unloading due to an accident. The importer further has to prove to the satisfaction of the Assistant Commissioner/Deputy Commissioner that the accident has not occurred due to any wilful act or negligence or default on its part. Unless these conditions are met, abatement cannot be granted under section 22. Nevertheless, the Additional Commissioner allowed abatement of 20%. He should have recorded as to why he was granting 20% abatement and should have also recorded his satisfaction that damage had occu....