2019 (8) TMI 1343 - AT - Customs

Tribunal Upholds Order, No Violation of Natural Justice, Penalties Imposed

The Tribunal dismissed the appeal, upholding the Order-in-Original. It found no violation of principles of natural justice, justified the invocation of ... Principles of Natural Justice - no opportunity was afforded to the appellant to either present the case or to be heard in the matter and the decision is as good as an ex-parte decision - application in the Settlement Commission with the prayer to keep in abeyance the adjudication proceedings - HELD THAT:- Till date the appellant has not produced anything to show that they ever approached the Settlement Commission nor there is any other effort post 07.10.2016, the date of personal hearing when father of the appellant attended the same that any reminder for continued abeyance for calculation of interest was ever given to the Department. There is nothing on record to show as to why the interest could not have been calculated and deposited in full by the appellant. Also, there is nothing on record to show that the notices as issued post 07.10.2016 were given to the appellant at the wrong addresses - In the given circumstances, especially when the appellant had knowledge of pendency of proceedings before the adjudicating authority and had appeared once through his father but instead of submitting on merits had prayed abeyance of adjudication in view of the desire to appear before the Settlement Commission it was utmost required on the part of appellant to be diligent about the impugned adjudication. Absence of requisite due diligence on the part of the appellant cannot be a ground to extend any benefit in his favour. The ground of medical sickness of the Proprietor of appellant is already opined not relevant as the appellant had already marked his presence through the father of the Proprietor thereof. With these observations, we are of the firm opinion that neither the Order under challenge is an ex-parte Order as alleged nor there is violation of principles of natural justice as alleged. Rather sufficient efforts are apparent on the part of the adjudicating authority to serve repeated reminders to the appellant to appear and submit on merits. The appellant wilfully opted to not to avail the said opportunity. The Order under challenge cannot be set aside on the grounds of violation of principles of natural justice. Valuation - HELD THAT:- The fraud in the form of forgery is very much apparent in the present case not only from the non retracted confession of the Proprietor of appellant but stands corroborated from the various documents recovered during investigation pointing towards the alleged under valuation - the under valuation of goods has rightly been held by the adjudicating authority below - demand of differential customs duty is upheld. Mis-declaration of goods - HELD THAT:- Apparently, there is the difference in description of the imported goods as mentioned in the invoices issued by the exporter to the one annexed with the Bill of Entry. Even the Bill of Entry mentions the import of one set only. There is no evidence to support that five sets is actually equal to one set - the adjudicating authority has committed no error while confirming the proposed mis-declaration of the goods imported by the appellant. Penalty u/s 114A and 114AA of Customs Act, 1944 - HELD THAT:- Section 114A prescribes penalty in case of short levy or non levy of duty, i.e. in a case where the duty or interest as determined under Sub-section 8 of Section 28 of the Act and the interest payable thereon under Section 28AA of the Act has not been paid by the importer. Whereas, Section 114AA prescribes penalty for the use of false and incorrect material - No doubt, in case of use of false and incorrect material there would also be the short paid duty or interest but all cases of short paid duty or interest may not be the cases of use of false and incorrect material. Hence, the scope of both the Sections is out rightly distinct. Quantum of interest - HELD THAT:- The non calculation of interest (as alleged), if any, on the part of the adjudicating authority is also not relevant for extending any benefit to the appellant, in view of the fact that appellant out of his own volition has deposited the entire differential customs duty and even the part interest thereof that too beyond the period of 30 days from the date of the show cause notice. Appeal dismissed - decided against appellant. Issues Involved:1. Violation of principles of natural justice.2. Invocation of extended period of limitation.3. Imposition of penalty under Sections 114A and 114AA of the Customs Act, 1962.4. Alleged under-valuation and mis-declaration of imported goods.5. Calculation and payment of differential customs duty and interest.Detailed Analysis:1. Violation of Principles of Natural Justice:The appellant argued that the Order-in-Original should be set aside due to a violation of principles of natural justice, claiming no opportunity was provided to present their case or be heard. They contended that personal hearing notices were not received as the appellant was abroad for medical treatment. However, the Tribunal observed that the adjudicating authority had granted multiple opportunities for a personal hearing, including notices on 24.11.2017, 28.11.2017, 05.12.2017, 12.01.2017, and 31.01.2018. Despite these opportunities, there was no appearance or submission of required documents by the appellant. The Tribunal concluded that the Order was not ex-parte and sufficient opportunities were provided, thereby rejecting the claim of a violation of natural justice.2. Invocation of Extended Period of Limitation:The appellant contended that the Department was not entitled to invoke the extended period of limitation. However, the Tribunal upheld the Department’s decision, noting that the appellant had systematically under-valued and mis-declared goods with the intention to evade customs duty. The Tribunal found that the appellant’s actions justified the invocation of the extended period of limitation.3. Imposition of Penalty under Sections 114A and 114AA of the Customs Act, 1962:The appellant argued that penalties under both Sections 114A and 114AA amounted to double jeopardy. The Tribunal clarified that Section 114A deals with penalties for short levy or non-levy of duty, while Section 114AA pertains to penalties for the use of false and incorrect material. The Tribunal found that the scope of these sections is distinct and upheld the imposition of penalties under both sections, as the appellant’s actions involved both short payment of duty and the use of false material.4. Alleged Under-Valuation and Mis-Declaration of Imported Goods:The Department alleged that the appellant had under-valued and mis-declared the consignment, declaring the value as USD 890 instead of USD 6,890 and declaring one set of goods instead of five. The Tribunal found sufficient evidence, including the appellant’s admission and corroborating documents, to support the Department’s allegations. The Tribunal upheld the findings of under-valuation and mis-declaration, confirming the demand for differential customs duty.5. Calculation and Payment of Differential Customs Duty and Interest:The appellant claimed that the Department failed to calculate the interest, which prevented them from making full payment. The Tribunal noted that the appellant had already deposited the differential customs duty and part of the interest. The Tribunal found no evidence that the appellant had made efforts to calculate and pay the full interest. Consequently, the Tribunal rejected the appellant’s claim and upheld the demand for differential customs duty and interest.Conclusion:The Tribunal dismissed the appeal, upholding the Order-in-Original. The Tribunal found no violation of principles of natural justice, justified the invocation of the extended period of limitation, and confirmed the imposition of penalties under Sections 114A and 114AA. The Tribunal also upheld the findings of under-valuation and mis-declaration of goods and confirmed the demand for differential customs duty and interest.