The Commnr. Of Customs(Gen) Mumbai vs Abdulla Koyloth

on behalf of M/s. IPCO Enterprise, whereby the total assessable value of the goods was declared at ` 6,75, 796.90/- with duty liability of ` 3,86,352/-.

3. On an examination of the bill of entry, invoice dated 17th April 2002, and packing list issued by one M/s. Plizer Trading, Dubai, certain discrepancies were noticed by the Central Intelligence Unit, and therefore, first check appraisement was ordered. Subsequently, 100% examination of the goods was carried out on 13th-14th May 2002, and it was found that there was mis-declaration with respect to country of origin, quantity and value of the imported items.

5. Due to large number of discrepancies found in the bill of entry, and the fact that the import of R-22 gas filled cylinders required actual user license, the goods were seized on 4th July 2002.

6. On 26th August 2002, the respondent wrote a letter to the Central Intelligence Unit whereby he stated that he had accepted the wholesale prices found out by the department by market survey, and that the case be finalized and settled at the earliest. Thereafter, duty liability was calculated in terms of Rule 6A and 7(1) of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 (for short "the 1988 Rules") as it was observed that Rules 3(i) and 4 were not applicable due to mis-declaration, and Rule 5 and 6 could not be invoked as there were no contemporaneous imports of similar or identical goods.

7. On 13th September 2002, another statement of the respondent was recorded under Section 108 of the Act, wherein he admitted, inter alia, that there was difference in the items declared and the items actually found and seized under Panchnama, and that the prices of the 3 items, in question, found by the market survey were acceptable to him.

Thus, having rejected the value declared by the respondent for the purpose of Section 14 of the Act, the Commissioner held that the assessable value of the goods had to be determined under Rules 6A and 7 of the 1988 Rules. Accordingly, he confirmed the assessable value of the goods at `23,69,838/- and the duty demand of `13,17,091/- as customs duty on them. Additionally, the Commissioner ordered the confiscation of the said goods under Sections 111(d) and (m) of the Act, with the option of redemption on payment of fine of `30,11,525/-. However, R-22 gas filled cylinders were confiscated absolutely under Section 111(d) of the Act. The Commissioner also imposed a penalty of `10 lakhs on the respondent under Section 112(a) of the Act.

9. Being aggrieved by the said order of the Commissioner, the respondent carried the matter in appeal before the Tribunal. As afore- mentioned, the Tribunal allowed the appeal of the importer in relation to the assessable value and confiscation of the imported glassware, inter alia, observing thus:

In relation to the confiscation of the R-22 gas filled cylinders, the Tribunal held that the confiscation of the said goods was justified on the ground that the said goods had to be imported against an actual user license, which the respondent did not possess. The Tribunal also deleted the penalty levied on the respondent on the ground that since the value enhancement had not been upheld by it, there was no cause for imposition of penalty.

19. In light of the foregoing discussion, we are of the opinion that the Tribunal needs to re-examine the entire matter afresh, particularly in relation to the manner of valuation, redemption fine and penalty. Consequently, the appeal is allowed, and the matter is remitted back to the Tribunal for fresh consideration in accordance with law after affording proper opportunity of hearing to both the parties.

20. There will be no order as to costs.

OCTOBER 29, 2010.