ORDER
Gowri Shankar, Member (T)
1. Appellant filed a bill of entry for clearance of a consignment of tin ash/dross imported by it. The bill of entry and the invoice for the goods stated them to be tin ash/dross and did not bear any indication of the metal content. Examination of the goods by the Custom House showed tin content to be 94.5%. After hearing the importer (who waived issue of written show cause notice) the Collector passed the order impugned in the appeal, enhancing the value of the goods on the basis of prices of tin prevailing in the London Metal Exchange (LME) less the difference in the purity of the metal and costs in refining, confiscating the goods under Clause (m) of Section 111 and imposing penalty. Hence this appeal.
2. We are not able to accept the contention of the Advocate for the appellant that the value determined by the Collector is incorrect. The Collector had determined the value by applying the LME prices prevailing on the date of contract entered into and grading on allowance between the purity of the goods in the LME (99%) and the metal content of the goods in question. The contention that the purity of the metal is different from metal content has no merit. We, therefore, confirm the value determined by the Collector.
3. As noted earlier the metal content of the goods was not mentioned in the bill of entry or the list attached to it. There is no contention in the impugned order that the goods are other than tin ash/dross. In that situation, there is no basis for confiscation of the goods under Clause (m) of Section 111. In this clause to apply there must be a difference between the value or other material particularly declared in the bill of entry (or in the case of declaration) and what is determined as a difference obviously cannot arise where no declaration made in the relevant bill of entry. The Departmental Representative’s contention that there is an implicit misdeclaration in that the seller would not have supplied the goods of purity at a price lower than the price prevailing in the market is unacceptable in the face of evidence that the price was manipulated or artificial. There could be various explanations for the lower prices for example the price may have been negotiated on the basis of commercial or even extra commercial consideration. Confiscation of the goods and consequential penalty/therefore, are not justified.
4. We therefore set aside confiscation and penalty with consequential relief, if any. Appeal allowed in part.