ARCHANA WADHWA, J. - (1.)VIDE his impugned order Commissioner of Customs has confiscated imported goods declared as Nickel Silver Scrap -Malic by the appellant with an option to them to redeem the same on payment of redemption fine of Rs. 6 lakhs. He has further imposed penalty of Rs. 2.5 lakhs on Shri S.B. Maheshwari, Proprietor of M/s. Shekhar Impex.
(2.)AFTER hearing both the sides, we find that M/s. Shekhar Impex is a 100% EOU and imported the said goods under claim of exemption in terms of Notification No. 53/97. The appellant imported Nickel Silver Scrap -Malic in or around February, 2003, on the basis of the permission given by the Development Commissioner and letter of undertaking and filed bill of entry. On examination of the goods, it was found that they were not in the shape of scrap and a doubt as regards their misdeclaration and consequent undervaluation was raised. The samples were sent to Chemical Examiner of Customs House, Kandla, who vide his test report dated 11 -2 -2003 reported that the sample was in the form of cut pieces of irregular metallic lump with metallic luster and the same is an alloy of Copper, Nickel and Zinc, the percentage of Copper being as 66.7% and Nickel being 14.1% and the balance being Zinc. Accordingly, further investigations were conducted and statements of the proprietor of the importing unit as also proprietor of CHA were recorded. It was found that the goods stand purchased by the importer on high sea sale basis and it was clarified that inasmuch as the same were imported from Estonia - a CIS country, which is not permitted to export scrap, the same were moulded by the exporter into big metallic lumps. Reliance was placed on the newspaper reports of the exporting country.
(3.)ON the above basis, proceedings were initiated against the appellant vide show cause notice dated 21 -5 -2003 alleging misdeclaration as regards description and value of the moulded goods and proposing to enhance the value and confirming the duty accordingly. Notice also proposed confiscation of the goods and imposition of penalties.
Commissioner vide his impugned order held that inasmuch as the goods were meant for 100% EOU, the same were exempted from customs duty by virtue of various notifications. However, he upheld the charge of mis -declaration and undervaluation and accordingly confiscated the goods and imposed penalties.