ORDER
K.D. Mankar, Member (T)
1. These are appeals which have been filed against a common order, one by M/s Vijay Silk House Pvt. Ltd. and the rest by the revenue. The appeal filed by M/s Vijay Silk House Pvt Ltd., against the impugned order-in-original passed by the Commissioner of Customs (Prev.), questions the validity and the legality of the said order. From the facts of the case, it is revealed that 4 consignments of imported polyester fabrics were initially cleared duty free against a DEEC licence, presented by the appellants. On enquiry it was revealed that the import was made against an expired licence, by manipulation of the import document to show shipment within the validity period of licence. Therefore import of polyester fabrics was allowed only on payment of duty. The duty free import was held as not valid. It was observed by the Commissioner that the licence against which duty free clearance was sought had already expired and the goods imported against the same could not have been utilized to fulfill the export obligation stipulated in the licence. The Commissioner accordingly ordered that the licence be credited. In the appeal of M/s Vijay Silk House Pvt. Ltd., it has been pleaded that the order demanding the duty of Rs. 54,37,619/- be set aside and the import licence in question be held as valid.
2. We have heard both sides Ld. Advocate for M/s Vijay Silk House Pvt. Ltd. mentions that the licence has since been re-credited and the licence has also been re-validated by the DGFT and consequently the appeal filed by the appellant M/s Vijay Silk House Pvt. Ltd. has become infructuous. Accordingly, we dismiss the appeal filed by the appellants M/s.Vijay Silk House Pvt Ltd., as being infructuous.
3. So far as the revenue appeals are concerned, the grievance is that the Commissioner ought to have confirmed the differential duty on account of under valuation and ought to have imposed penalty on the importers under Section 112 of the Customs Act.
4. We note that, so far as the issue of under valuation is concerned, the department has proposed valuation based on the invoices of identical goods imported by the importers from the same source. However, copies of the relevant invoices are not on records so as to ascertain whether the supplier has supplied the identical goods to the importers on the same day at different prices. Unless a prima facie evidence is brought on record to show that the goods figuring in the invoice of higher price are identical or similar, the case for under valuation can not be sustained.
5. So far as failure of the Commissioner to order confiscation and impose penalty is concerned, we note that, on considering the evidence on record the Commissioner had extended benefit of doubt to the importers. In the circumstances of the case, we feel that the said finding does not call for any interference.
6. In the light of the above discussion, we hold that the revenue’s appeals are without any merit and the same is accordingly rejected.
(Dictated in Court)