2021-VIL-519-CESTAT-MUM-CU

CUSTOMS CESTAT Case

Customs - Classification of goods - Demand of duty - Appellant/assessee exported ‘brilliant cut round diamonds’ of 58 facets - Revenue authority confiscated goods under section 111(m) of the Customs Act, 1962 - Opinion of Gemological Institute of India (GII) was sought on sample of six diamonds drawn - Proceedings were proposed to be initiated upon their report that four of these were ‘heat processed heat treated Type IIa’ with other two being ‘cut and polished diamonds’ - Commissioner passed order re-classifying ‘rough diamonds’ as ‘cut and polished diamonds’ with consequent enhancement of value and duty liability - In addition, confiscation of goods under section 111(m) were allowed to be redeemed on payment of fine of and imposition of penalties section 112 of the Customs Act, 1962 – assessee in appeal – HELD - while goods are not ‘rough diamonds’ as mined and might have undergone working before its import, reports do not conclusively establish that these are ‘cut and polished diamonds’ on which duty liability has to be fastened - Contention of appellant that stones has been exported after final cutting and polishing is not controverted - Such exports of imported goods are eligible to drawback of duties paid on their import - It does not appeal to reason that intention of evading duty of mere Rs. 1,03,817 prompted misdescription in bill of entry - Coupled with inadequate evidence of goods conclusively being ‘cut and polished diamonds’, this strikes at very foundation of proceedings initiated against appellant - Impugned order is set aside and assessee’s appeal allowed

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