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4.1 During adjudication, it appears that the respondent through its representative claimed ignorance by throwing the blame on the foreign supplier; that the supplier had sent wrong consignment to them and thus requested the Commissioner to permit them to re-export the consignment in question. It also appears that the respondent-importer, on the same day, requested the Deputy Commissioner of Customs (Gr-2) for clearance.

4.2 The Adjudicating Authority has observed in the Order-in-Original that the respondent, claiming wrong shipment/supply, had also sought for clearance, which did not arise, and thus vide Order-in-Original No. 19327/2012 dated 30.08.2012 (i) rejected the declared description and held the same as "PVC Flex Fabrics" (ii) rejected the declared value of USD 0.65 per kg. under Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 and redetermined the same at USD 1.30 per kg. (iii) ordered payment of Anti Dumping Duty of Rs.11,14,122/- under Notification No. 82/2011-Cus. dated 25.08.2011 (iv) ordered payment of differential customs duties of Rs.2,80,168/- on the enhanced value (v) ordered confiscation of the goods imported vide the Bills-of-Entry in question in terms of Section 111(l) and 111(m) of the Customs Act, 1962, while also giving an option to redeem the goods on payment of redemption fine of Rs.1,15,000/- under Section 125 of the Act, thereby rejecting the request for re-export of the goods; and (vi) imposed penalty of Rs.13,94,290/- on the respondent under Section 114A ibid.

• Specifications of the product are very clear and hence, prima facie, no fault could be found with the declaration by the respondent.
• The fact of wrong shipment was communicated by the respondent to the supplier on 02.12.2011, which was accepted by the supplier on 05.12.2011, [no such communication/acknowledgement furnished before us by either of the parties] • Supplier replied per fax dated 08.12.2011 to the effect that the shipment was for another importer. [our observation: but however, details of such another importer could have been very well furnished before Adjudicating Authority / Commissioner (Appeals), which is apparently not done] • The supplier regretted for the mistake. • With regard to misdeclaration, it is observed that the packing list and the Bill-of-Lading clearly and correctly mentioned the total gross weight and net weight.
• Department chose to enhance the value of the past consignment with the present declared description with that of re-determined without conclusively proving that the earlier consignment also was mis- declared. [our observation: when the importer itself had accepted and paid the differential duty, there is nothing for the Revenue to 'prove'] • Department failed to issue Show Cause Notice or produced documentary evidence of their allegations or offer a personal hearing and thereby, totally failed to follow principles of natural justice. [our observation: grievance should have been lodged/protested, no such things appear on record] • Vide letter dated 20.02.2012, the respondent had not accepted the value enhancement for the past clearance and the duty was paid under protest. [our observation: the importer could have filed appeal as payment was never a bar] • Letter to the Deputy Commissioner, Group-2 clearly states that they accepted wrong shipment by the supplier and the same letter made it clear that the respondent was willing to clear the cargo only if it was allowed without any penal action. [our observation: this is perhaps the second and repeated case of misdeclaration, for which a condition is put by the importer itself thereby pretending innocence] 5.2 The learned First Appellate Authority thus concludes that there was no deliberate misdeclaration, despite the fact on record that the same misdeclaration Appeal No.: C/40261/2013-DB was repeated in the earlier import, on the part of the respondent and that the Department also did not come out with conclusive evidence to the contrary to the correspondence between the supplier and the respondent.
• Respondent waived Show Cause Notice and participated in personal hearing before the Adjudicating Authority; prayer was made for re-export of goods.
• Order-in-Original was passed and the same was challenged in appeal; case was projected to be a case of wrong shipment.
• Commissioner (Appeals) came to the conclusion on the basis of correspondences that it was the case of wrong supply. • Further finding of the Commissioner (Appeals) is that the Department did not bring on record any material to contradict the contention of wrong supply.