2019 (4) TMI 948 - AT - Customs

Tribunal upholds under-invoicing charges in appeal, clarifies jurisdiction.

The Tribunal dismissed the appeals, upholding the Commissioner (Appeals)'s order. The Tribunal clarified that its earlier order only set aside the ... Scope of the order - Order in appeal was common for several parties - tribunal has set aside the order in case of two parties - Appellants in the present case have claimed that since the appeals of two of the co-noticees have been allowed and the impugned order of Commissioner (Appeal) has been set aside, there appeal should also be allowed as the impugned order has been set aside. - Held that:-  Though the argument advanced by the Counsel for appellants look attractive but is without any substance. The scope of order of the appellate authority is limited to the appeal under consideration. The order of appellate authority cannot be held to have decided the appeal which was not under consideration before the bench then - the order of the Commissioner (Appeal), [impugned order], to the extent of appellants before that bench is set aside, and not the entire order. It may happen in case where there are multiple noticees, few may not chose to challenge the order passed against by them. In case the order is set aside in respect of those who have filed the appeal is set aside then it will not imply that relief has been granted to the all the noticees. Jurisdiction - power of Additional Director DRI to issue SCN - Held that:- The issue is decided in the case of SUNIL GUPTA VERSUS UNION OF INDIA AND OTHERS [2014 (12) TMI 151 - BOMBAY HIGH COURT] - decided against appellant. There are no merits in the contentions raised by the appellants in their appeal or during the course of arguments - appeal dismissed - decided against appellant. Issues Involved:1. Whether the entire order of the Commissioner (Appeals) was set aside by the Tribunal's earlier order dated 23.01.2018.2. Jurisdiction of the Additional Director DRI to issue the Show Cause Notice.3. Validity of the charges of under-invoicing against the appellants.Issue-wise Detailed Analysis:1. Whether the entire order of the Commissioner (Appeals) was set aside by the Tribunal's earlier order dated 23.01.2018:The appellants argued that the Tribunal's earlier order set aside the entire order of the Commissioner (Appeals), thus their appeals should also be allowed. However, the Tribunal clarified that the scope of the appellate authority's order is limited to the appeals under consideration. The order dated 23.01.2018 set aside the Commissioner (Appeals) order only for the appellants before that bench, not for all noticees. The Tribunal referenced the Supreme Court's decision in Mafatlal Industries, emphasizing the finality of proceedings unless an order is set aside according to law. Therefore, the Tribunal rejected the appellants' argument that the entire order was set aside.2. Jurisdiction of the Additional Director DRI to issue the Show Cause Notice:The appellants contended that the Show Cause Notice issued by the Additional Director DRI was without jurisdiction, citing various decisions. However, the Tribunal referred to the Bombay High Court's decision in Sunil Gupta, which upheld the jurisdiction of DRI officers to issue Show Cause Notices post the 2011 amendments to the Customs Act, 1962. The Tribunal noted that the Delhi High Court's decision, relied upon by the appellants, had been stayed by the Supreme Court. Hence, the Tribunal found no merit in the appellants' jurisdictional challenge.3. Validity of the charges of under-invoicing against the appellants:The appellants argued that their case was similar to the Tribunal's earlier decision in Mittal Pigments, where the charges of under-invoicing were quashed. However, the Tribunal distinguished the facts of the present case, noting that the appellants had directly imported goods from foreign suppliers, unlike in the Mittal Pigments case, where goods were purchased on High Sea Sales. The Tribunal also observed that the present case involved ad valorem duty, not fixed tariff rates as in the Mittal Pigments case. The Tribunal found sufficient corroboration for the charge of undervaluation, including the existence of two sets of invoices and admissions by the importer about mis-declaration of value. The Tribunal also referenced a similar case (Ramesh Dalmia and Others) where documentary evidence from foreign customs authorities was deemed reliable.Conclusion:The Tribunal dismissed the appeals filed by the appellants, upholding the impugned order of the Commissioner (Appeals). The Tribunal found no merit in the appellants' arguments regarding the setting aside of the entire order, jurisdictional issues, or the validity of the under-invoicing charges. The decision was pronounced in the open court on 12.04.2019.