AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2024 (12) TMI 1662
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....of the goods. All the Test Bonds submitted by the importers during 2001 and 2002 had already been finalized as on test, the goods were found as per the declaration and the chemical composition of the goods had been found as per nomenclature and Material Safety Data Sheet. 3. During the course of business their business, the appellant-company executed legal contract with the manufacturer M/s. P.T. KARIMUN KENCANA AROMATICS, JALAN KOL SUGIONO NO. A/B MEDAN 20151 INDONESIA and M/s. SEO FRAGRANCE & FLAVOURS PTE LTD., SINGAPORE and imported 17 consignments of 'Patchouli Oil PS-24 (Natural Essential Oil)' when the transaction value was finally negotiated @ USD 3.25 per Kg. The Appellant filed 17 Bills of Entry for the clearance of the imported "Patchouli Oil PS 24." The proper Officers of Customs finally assessed the subject 17 Bills of Entry and allowed clearance of the said consignments. The Department did not prefer to test the representative samples of the goods chemically for any of these consignments, but allowed clearance on the basis of earlier test results. No objections were raised after physical examination of the goods. 4. On 06.09.2005, DRI, Kolkata Zone conduc....
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.... (vi) I hold the goods i.e. 79,100 kg of Patchouli Oil (natural essential oil)' with re-determined value at Rs. 8,77,25,803/ imported by M/s Vishal Enterprise under cover of above mentioned 17 Bills of entry and cleared from Custom House, Kolkata, liable to confiscation under Section 111(m) of the Customs Act. 1962. However, I impose a fine of Rs. 80,00,000/- (Rupees Eighty lakh only) as Redemption Fine in lieu of confiscation upon M/s Vishal Enterprise under Section 125 of the Customs Act, 1962. (vii) I impose mandatory penalty of Rs. 2,66,72,887/- (Rupees Two crore sixty six lakh seventy two thousand eight hundred eighty seven only), for their acts of omission and commission, upon M/s Vishal Enterprise, Kolkata, under Section 1144 of the Customs Act, 1962. (viii) I impose a penalty of Rs. 25,00,000/- (Rupees Twenty live lakh only) upon Sri Vijay N Naik, under Section 112(a)(a) of the Customs Act, 1962. 5.1. Aggrieved against the confirmation of the demands and imposition of penalty in the impugned order, the appellant-company has filed Customs appeal No. 76458 of 2024. Shri Vijay N. Naik, Partner of the appellant-company, has filed Customs Appeal No. ....
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....d to get the goods chemically tested though unsold stock of the imported goods was available in appellant's go down in original packing during search. It appears that the obvious reason was to avoid ascertaining the correct patchouli alcohol content so as to discard the appellant company's contention of lower value proportionate to patchouli alcohol content. 7. It is usual practice of DRI to seize the disputed goods if available with the importers and get the sample tested to strengthen the result of investigation. Unfortunately, DRI did not resort to such actions in this case. Such unusual inaction of DRI has been tactfully covered up by the adjudicating authority by observing at para 10.10 of the impugned order that 'the appellant's questioning of DRI having not drawn drawing any samples from the oil in their go down for chemical test, is also improper as test could only have been done on the goods before these were cleared from Customs for integrity of results.' 8. The adjudicating authority decided that the impugned goods i.e. Patchouli Oil PS 24 and Patchouli Oil Standard are same since the specific gravity and refractive index of both are in the same range. ....
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....d not sustainable. 12. Patchouli Oil imported by them contains less Percentage of alcohol than the Patchouli Oil imported by others and hence, the price of their Patchouli Oil was less than that of others; hence, the prices declared in the contemporaneous imports mentioned above were not comparable prices. The appellant contends that they have submitted chemical report before the authority at the time of assessment of the subject goods. Patchouli Oil is produced in various grades and the valuation of the same depends upon various elements such as alcohol content, specific gravity, Refractive Index etc. Patchouli Oil PS24 imported by them was having less alcohol content and hence the same is sold at a lesser price in the international market. 13. When they filed the Bills of entry for clearance of "Patchouli Oil PS24", no test has been carried out by the Kolkata Customs to find out its grade and oil content and other parameters. The Test Reports submitted by them were accepted and the goods were cleared at the declared value. If there was any suspicion of undervaluation of the goods, the department could have ascertained the correct international price of that grad....
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....- Chennai)] which has been upheld by the Hon'ble Supreme Court as reported in 2003 (157) E.L.T. A150 (S.C.). 18. The appellants submit that the issue is no more res integra as this Tribunal has already decides the same issue in the case of M/s. Skypack Commodities Pvt. Ltd. v. Commissioner of Customs (Prev.), Kolkata vide Final Order No Final Order Nos.75558-75559 of 2024 dated 21.03.2024 in Customs Appeal No. 70021 of 2013 & anr. (CESTAT, Kolkata). 6.1. Accordingly, the appellants have prayed for setting aside the demands confirmed in the impugned order and for allowing their appeals. 7. The Ld. Authorized Representative of the Revenue reiterated the findings in the impugned order. 8. Heard both sides and perused the appeal documents. 9. We observe that the issue involved in the present appeal is related to mis-declaration and undervaluation of "Patchouli Oil PS 24 (natural essential oil)" imported by the appellant in 17 Bills of Entry. We observe that the appellant has been importing the same goods since 1996 from the same Manufacturer/Suppliers. During the year 2001 and 2002, the goods were assessed provisionally against the PD Test Bond and the consignments....
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....or rejection of the declared value by the Department. 10.2 We observe that the value of Patchouli Oil depends on various parameters such as alcohol content, specific gravity and Refractive Index of the Patchouli Oil. The appellant submits that the alcohol content in the Patchouli Oil varies from 32% to 2%. However, the investigation has not brought in any evidence to show that the contemporaneous import price whose price had been relied upon in this case to demand differential duty, has the same alcohol content, specific gravity and refractive index as that of the goods imported by the appellant. Accordingly, we hold that rejection of the declared price by the appellant is legally not sustainable. 10.3. We observe that the appellant submitted letter dated 12.12.2005 wherein the importer clarified that the value declared by the appellant in the Invoices are true and correct. The investigation has not disputed the correctness of the contents in the letter or its genuineness. Accordingly, we observe that the appellant has established that the value declared by them at the time of importation of the goods is genuine and correct and there is no reason to doubt its corr....
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....ng with interest confirmed in the impugned order is not sustainable and accordingly, we set aside the same. Since, the demand of duty is not sustainable, the question of imposing penalty on the appellant importer does not arise. 9.2. We find that the facts of the case are same as that of M/s. Skypack Commodities Pvt. Ltd. referred to supra. We observe that in respect of mis-declaration of the description of the goods and under-valuation, the onus is cast upon the Revenue to prove the same. In this case, the Department has failed to discharge this burden as they have not brought in any evidence to prove the mis-declaration of the value by the appellant. We observe that the officers rejected the assessable value declared by the appellant without any valid ground. There was no finding in the impugned order to reject the assessable value declared by the appellant. After rejecting the declared assessable value, the Ld. Adjudicating authority has adopted the price of contemporaneous import of similar goods to enhance the value declared, without adducing any evidence to the effect that the goods are comparable. There is no evidence available on record to indicate that the Patchouli Oil....