2015 (3) TMI 330 - AT - Customs

Tribunal Orders Deposit for Customs Duty Appeal, Emphasizes Importer Liability

M/s. Aasu Exim Pvt. Ltd. Versus Commr. of Customs (Port), Kolkata

The Tribunal found in favor of the Revenue, directing the appellant to deposit 10% of the duty within eight weeks, with the balance dues waived upon ... Waiver of pre deposit - Penalty under Section 114 (A) - Held that:- There has been a demand for short payment of duty against import of seven consignments. It is the claim of the appellant that the entire Customs duty had been paid by them to their CHA in relation to the said seven bills of entry but ultimately, the total duty has not been paid by the CHA to the Customs, resulting into short payment of duty. It is their submission that major portion of the customs duty has been paid by them through demand draft and balance amount were paid by their customers. The Ld. Advocate submits that the entire amount of duty has been paid by them to the CHA. The Ld. A.R. for the Revenue on the other hand submits that whatsoever reason might be that the Department has not received the duty of ₹ 8.85 Lakhs either from CHA or from the applicant against the said Bills of entry. It is the submission of the Ld. A.R. that since the duty has not been paid by the CHA, it has to be discharged by the importer. I find even though, the CHA has not filed any appeal before this forum, whether the entire amount of duty has been discharged or otherwise as claimed by the applicant, rests on appreciation of evidences. At this stage, keeping in view the facts and circumstances of the case, I find that it is appropriate to direct the appellant to deposit 10% of the duty involved in the present case within a period of eight weeks - Partial stay granted. Issues: Waiver of pre-deposit of duty and penalty under Section 114 (A) of Customs Act, 1962.Analysis:1. The appellant imported consignments through Kolkata Customs House and engaged a Clearing House Agent (CHA) for clearance. Out of 13 consignments, 6 were cleared without dispute, but for the remaining 7, there was forgery by the CHA resulting in short payment of Customs duty of &8377; 8.85 Lakhs. The appellant notified Customs about the forgery, leading to an investigation by DRI, which confirmed the short payment due to the CHA's actions.2. The appellant claimed that they paid the duty through demand drafts to the CHA, supported by certificates from Citi Bank. The appellant also stated that the balance duty amount was paid directly by the buyer of the goods. The Department disputed only the &8377; 8.85 Lakhs as short paid. The appellant asserted that they can provide evidence to prove the payment, while the CHA failed to discharge the duty.3. The Revenue argued that the appellant failed to explain the short payment of duty, citing precedents where duty was held recoverable due to lack of explanation. The Commissioner's order noted the appellant's inability to clarify the short payment, leading to the duty being deemed recoverable from them.4. After considering both sides, the Tribunal found a demand for short payment against 7 consignments. The appellant claimed they paid the duty to the CHA, but it was not remitted to Customs, resulting in the shortfall. The Revenue contended that as the duty was not paid by the CHA, the importer is liable. The Tribunal directed the appellant to deposit 10% of the duty within eight weeks, with the balance dues waived upon deposit. Failure to comply would lead to dismissal of the appeal.This judgment highlights the importance of proper payment of Customs duty, the liability of importers in case of non-payment by CHAs, and the Tribunal's discretion in directing pre-deposit for appeals.