TaxTMI 
TaxTMI 
2009 (7) TMI 584
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....995%. The actual quantity of the goods was found to be 269.79 MTs as against the declared quantity of 201.866 MT. The goods had been supplied by M/s. American Trade Link Inc., Texas, U.S.A. (hereinafter referred to as M/s. ATL) whose proprietor is one Shri Naresh Mittal. The goods in the 10 containers were placed under seizure on 26-3-99. The case against M/s. Hindustan Overseas resulted in issue of SCN No. VIII (ICD) 6/Adj./Commr./26/99 dated 23-12-99. Subsequent enquiry revealed that from the same supplier, there were other imports in past at ICD, Ballabgarh wherein the goods had been declared as secondary zinc ingots or zinc slabs "scull" and one such import was by M/s. Chirag Enterprises, D-15/108, Sector-3, Rohini, Delhi (hereinafter referred to as M/s. Chirag) with Shri Sudhanshu Mittal as proprietor. M/s. Chirag had imported consignments in six containers declared to contain "108.047 MTs of secondary zinc ingots in 157 bundles, totally valued at Rs.31,58,641/- (Rupees Thirty-One Lakh Fifty-Eight Thousand Six Hundred Forty-One)" at ICD, Ballabgarh vide bills of entry No. 167 dated 22-9-98, 248 dated 22-10-98 and 269 dated 30-10-98. Some of the other importers were M/s. Veer E....
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....average weight of each bundle being one MT, and since in respect of similar import from the same supplier by M/s. Veer Enterprises and M/s. Rajiv Enterprises, the importers, as against the declared description of -"Secondary zinc ingots", accepted the goods to be prime quality zinc ingots, the Department was of the view that in case of the consignment imported by M/s. Chirag also, the goods were actually prime quality zinc ingots and the weight of each bundle of the zinc ingots was one MT and according to the Department, therefore, on the basis of the actual quality and quantity of the goods, their value should be - Rs.70,34,034/- (Rupees Seventy Lakh Thirty-Four Thousand and Thirty Four) as against the declared value of Rs.31,58,641/- (Rupees Thirty-One Lakh Fifty-Eight Thousand Six Hundred Forty-One) and accordingly duty amounting to Rs. 25,77,967/- (Rupees Twenty-Five Lakh Seventy-Seven Thousand Nine Hundred Sixty-Seven) including Special Additional Customs Duty has been short paid by the appellant. Accordingly, a show cause notice dated 8-6-99 was issued to M/s. Chirag and Shri Sudhanshu Mittal for - (a) enhancement of the assessable value of the goods to Rs.70,34,034/- (Rupee....
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....ne Hundred Fifty-One) already paid against this demand was ordered to be appropriated; and (e) imposed penalty of Rs.25,77,967/- (Rupees Twenty-Five Lakh Seventy-Seven Thousand Nine Hundred Sixty-Seven) on Shri Sudhanshu Mittal proprietor of M/s. Chirag under Section 112(a) of the Customs Act, 1962. 1.5.1 The penal proceedings against Shri Irfan Ahmed, Assistant Commissioner; Shri B.S. Suhag, Appraiser; Shri Pradeep Sharma, Appraiser; Shri Vinod Parkash, Superintendent; Shri Y.P. Gupta, Inspector; and Shri S.K. Chauhan, Inspector; were dropped. 1.6 It is against this order that M/s. Chirag and proprietor Shri Sudhanshu Mittal have filed these two appeals. 2. Heard both the sides, and also perused the written submissions submitted by the appellants on 29-5-09 and by the respondent also on 29-5-09. 2.1 Shri Piyush Kumar, Advocate, the learned Counsel representing the appellants made the following submissions in course of hearing as well as in the written submissions filed by him:- (1) The issues involved in these appeals are - (a) whether the Commissioner is legally correct in holding that the appellant wilfully misdeclared the goods imported under bills of entry No. 167 dated ....
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....to supply of zinc ingots, wherein the weight of one bundle was one MT and on this basis the Commissioner has concluded that it is an international norm to make one bundle of one MT each of zinc metal and it is on this basis that the Commissioner has concluded that the actual weight of the zinc ingots imported by the importer under the three bills of entry should be 157 MT as declared value of 118 MT. The aforesaid findings of the Commissioner are patently misconceived and without any basis. (3) The goods covered under the impugned three bills of entry had been cleared by the customs officers after due examination. The examination reports which are available on the reverse of the bill of entry clearly reveal that the goods were duly examined by the officers and were found to be as per the declaration. (4) In this case the consignments were examined by the proper officers in accordance with the prevailing practice. Shri Pradeep Sharma, Appraiser, in his reply dated 20-11-2000 to the show cause notice has stated that the nature and quality of the consignments, in question, were ascertained by the way of visual examination, as by virtue of long experience in examination of the import....
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....n of quality of the goods is available, the following circumstances clearly show that the goods had been misdeclared - (a) Facts of the case as discussed at pages 1 and 2 of the impugned order-in-original show that the supplier of the goods in the present case was M/s. ATL, USA with Shri Naresh Mittal as its proprietor and the same supplier had supplied the goods declared as "zinc ingots scull" to M/s. Hindustan Overseas and those goods on examination by the DRI were found to be prime quality zinc ingots with 99.995% purity and the actual quantity was found to be 269.79 MT as against the declared quantity of 201.866 MT. Similar goods supplied by the same supplier to M/s. Alok Overseas and M/s. Ashish International were seized at N-54, Sainik Farms, New Delhi and on test were found to be prime quality zinc ingots of 99.995% quality and not secondary zinc as declared. In case of similar imports from the same supplier by M/s. Veer Enterprises and M/s. Rajiv Enterprises, the importers accepted the misdeclaration and deposited the differential duty. Therefore in the present case when the supplier is the same and the goods were declared as secondary zinc ingots, the preponderance of pro....
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.... reported in 2002 (150) E.L.T. 590 (Tri. - Kolkata) and also the judgment of the Tribunal in the case of Mettaco Engg. Pvt. Ltd. v. CC, Ahmedabad reported in 2005 (182) E.L.T. 210 (Tri. - Del.). In para 9 of the judgment, case of M/s. Mettaco Engg. Pvt. Ltd., the Tribunal has held as under:- "As already noted in para 6, the short shipment indicated in private records remains fully established in regard to consignment under Shipping Bill No. 241 dated 11-10-95 by the difference noticed on examination of the goods. In such a case, the authorities cannot be faulted for confirming short exports in regard to the previous consignments also based on the position revealed by private internal documents. The appellants would appear to have been adopting the same modus operandi in the case of all these export consignments. The charge in respect of other consignments also has to be accepted as established. Therefore, proceedings are well founded in respect of previous exports also." (4) All the aforesaid judgments clearly indicate that evidence required to be produced by the Department is not restrict evidence and the Department has to prove its case only by preponderance of probability, whi....
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.... appeal No. C/665/2005, C/464-470/2005 and C/471/2005 have been filed, the Bench directed for linking of these appeals along with the appeal No. C/665/2005, C/464-70/2005 and C/471/2005 which were against the Commissioner's order-in-original No. 44/RH/Adj./04 dated 28-1-05. However, since the linked appeals had already been dismissed vide Tribunal's final order No. 921-28 of 2005-Cus., dated 31-10-05 for non-compliance to the provisions of Section 129E of the Customs Act, the present appeals No. C/737-738/05, when listed for hearing on 18-5-09 were listed as such without being linked up with the appeals No. C/665/05, C/464-470/05 and C/471/05. Since the case against the present appellants and the case against M/s. Alok Overseas, M/s. Ashish International, M/s. Veer Enterprises and others are the outcome of the same investigation, and a lot of evidence is common, we have considered it necessary to take judicial notice of the order-in-original No. 44/RH/Adj./04 dated 28-1-05 passed by the Commissioner in the cases of M/s. Alok Overseas, M/s. Ashish International, M/s. Veer Enterprises and others, which stands upheld by the Tribunal vide order-in-appeal No. 921-28/05-Cus., dated 31-10....
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....am International and M/s. Chamunda Metal Co., it was found that all these companies are the front companies of one Shri R.K. Jain, a dealer in non-ferrous metals and while he is the Managing Director of M/s. Ashish International, other companies are in the name of his relatives and employees and it is Shri R.K. Jain who is the person behind these companies and making imports in the name of these companies. Some of the goods zinc ingots imported in the name of M/s. Alok Overseas and M/s. Ashish International, which had been declared in the Bills of entry as "Secondary zinc ingots", were seized from a godown of M/s. Ashish International at N-54, Sainik Farm, Delhi and on being tested by CRCL and Spectro Analytical Labs (P) Ltd., Delhi the goods were found to be prime quality zinc ingots of the purity 99.995%. The ten containers imported by M/s. Hindustan Overseas, New Delhi, a front company of Shri R.K. Jain, which were declared to be containing "201.866 MTs of Zinc Slab Scull", on examination by the DRI officers on 26-3-99 were found to be 269.79 MTs of prime quality zinc ingots of 99.995% purity. On considering the evidence on record, the Commissioner vide order-in-original No. 44/....
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.... Shri R.K. Jain, as against the declared description of- '201.866 MTs of zinc slab scull' the goods were found to be prime quality zinc ingots with 99.995% purity and 269.79 MT in weight - each pallet/bundle of ingots being one MT in weight; (b) in case of the imports declared to contain -"Secondary zinc ingots", in the name of M/s. Alok Overseas and M/s. Ashish Enterprises the goods, which after clearance had been stored in their godown at Sainik Farm, Delhi from where the same was seized, were on chemical test and spectroscopic examination found to be prime quality zinc ingots of 99.995% purity; and (c) M/s. Veer Enterprises, have accepted the misdeclaration in description of the goods and deposited the differential duty; (d) The preponderance of probability would be in favour of the goods being prime quality zinc ingots instead of "secondary zinc ingots" as declared in the bills of entry. 6.As regards the misdeclaration of quantity, we find that in this group of imports in whichever case the goods were physically available, and examined the average weight of each bundle/pallets was one MT. A number of other bill of lading mentioned in the Commissioner's order show that the z....
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....to contain 'Secondary zinc ingots'. The Commissioner has also observed that it is not possible to distinguish between prime quality and secondary zinc ingots by visual examination. 7.1 The Commissioner in the order-in-original No. 44/RH/Adj./04 dated 28-1-05 as well as in the impugned order on these appeals has observed in a number of cases when the goods were examined by the Inspectors, instead of a categorical report as to whether the goods are as per the declared description, non-committal reports like - "the goods are said to be secondary zinc ingots" or "the goods appear to be secondary zinc ingots" have been given which shows that even the examining officers were not sure as to whether the goods are as per the declared description. In the present case also neither the Appraising Officers gave order for examination by drawing and testing the samples nor the samples were drawn and the shed Inspectors, who admittedly are not expert in metals, merely on visual examination, in one case gave the report that the goods are as per declaration, in other two cases gave ambiguous reports that - "the goods are said to be secondary zinc ingots". It is on the basis of such report, that Shr....