TaxTMI 
TaxTMI 
2010 (3) TMI 576
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....a Ltd. (hereinafter referred to as EIDIL), M/s. Sight & Sounds India, M/s. Sounds Terrific and M/s. Universal Electronics. Statement of Shri Marwah was recorded by the investigating officers on 15-9-2003 under Section 108 of Customs Act, 1962, wherein he admitted that there is under valuation and mis-declaration of description in the imports made by the above mentioned importers and in particular he admitted that - (a) A consignment of tags imported by EIDIL free of duty under exemption Notification No. 21/2002-Cus., dated 1-3-2002 was cleared through him and that for duty free clearance, a forged Apparel Export Promotion Council (AEPC) certificate had been produced to the Customs and this had been done in order to get regular business from EIDIL; and (b) 4 Bills of Entry each on behalf of M/s. Sound Terrific and M/s. Sight & Sound had been filed for clearance of the goods declared as 'Flat Panel Display for Automatic Data Processing machines' at concessional rate of duty under Notification No. 21/2002-Cus. (Srl. No. 325) and that in these imports also, the description of the goods had been mis-declared in order to avail the concessional rate of duty under the exemption notif....
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....m M/s. Sight & Sound India and appropriation of Rs. 3,18,181/- already deposited by them towards this demand; (c) Recovery of differential duty amounting to Rs. 2,38,127/- along with interest from M/s. Sounds Terrific and appropriation of Rs. 2,37,985/- already deposited towards this demand; (d) Imposition of penalty on EIDIL, M/s. Sight & Sound India, and M/s. Sounds Terrific under Section 112(a) and 114A of the Customs Act, 1962, and (e) Imposition of penalty under Section 112(a) on Shri Sasi Kumar of EIDIL, Shri Sunil Khera, proprietor of M/s. Sight & Sound India, Shri Pradeep Khanna, proprietor of M/s. Sounds Terrific and J.S. Marwah, proprietor of M/s. J.D. Enterprises, CHA. 1.4 The show cause notice dated 17-8-2004 was adjudicated by the Additional Commissioner of Customs vide Order-in-Original dated 20-10-2006 by which the Additional Commissioner besides confirming the above duty demand along with interest, against EIDIL, M/s. Sight & Sound India, and M/s. Sounds Terrific, imposed penalties on them and Shri J.S. Marwah as under :- Sl. No. Name of the noticee Section under which penalty imposed Amount in Rupees 1. EIDIL 112(a) read with 114A ....
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....l against the order dated 29-1-07 of the Commissioner suspending the CHA license. The Tribunal vide order dated 4-6-2008 disposed of the appeal observing that since the appeal against the order dated 31-12-07 of the Commissioner (Appeals) is pending before the Tribunal, no intervention is required at this stage. Shri Marwah filed appeal before the Hon'ble Delhi High Court against the Tribunal's order dated 4-6-2008 and the Hon'ble Delhi High Court vide order dated 13-2-2009 while observing that no intervention is required at this stage, directed the Tribunal to expedite the appeals of Shri Marwah against the order dated 31-12-07 of the Commissioner (Appeals). The Hon'ble Delhi High Court in its order dated 13-2-2009 also observed that the Tribunal is not to be influenced by the observation made in its order. Pursuant to Hon'ble Delhi High Court's order dated 13-2-2009, appeal No. C/79 & 80/08 were taken up for final disposal and the Tribunal vide Final Order No. C/408-409/09 dated 14-9-2009 remanded the matter to the adjudicating authority for de novo adjudication with certain directions. Aggrieved by the Tribunal's order dated 14-9-2009 Shri Marwah filed Civil Writ Petition No. 13....
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....nal rate of duty under Notification No. 21/02-Cus. (Srl. No. 325 of table annexed to the notification) has been correctly availed. (3) There is no admission by the importers that the goods imported were Reception apparatus for television. The examination reports by the customs, as recorded on the Bills of Entry, also confirm that the goods on being examined were found to be as per the declared description i.e. Flat Panel Display for Automatic Data Processing Machine/Plasma Monitors for computers. The Commissioner (Appeals) in the impugned order-in-appeal has also given finding that there is no documentary evidence to counter the examination report. When on examination by Customs, the goods were found to be as per the declared description and this fact has been confirmed by the Commissioner (Appeals), there is no basis for allegation against Shri J.S. Marwaha, CHA that he had connived with the importers for duty evasion by deliberately mis-declaring the goods as "Flat Panel for display Automatic Data Processing Machine" and thereby fraudulently availing the concessional rate of duty under Notification No. 21/02-Cus. (Srl. No. 325) for which the importers were not eligible. M/s. N....
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....of Cus., Bulsar, reported in 1997 (96) E.L.T. 211 (S.C.) and that since Shri Marwaha had abeted the duty evasion by mis-declaration, penalty under Section 112(a) has rightly upheld by the Commissioner (Appeals). 3. We have carefully considered the submissions from both sides and perused the records. There are three main issues to be decided in this case - (a) Were the goods imported eligible for concessional rate of duty under Notification No. 21/02-Cus. (Srl. No. 325)? (b) If answer to question (a) above is in the negative, whether Shri Pradeep Khanna, proprietor of M/s. Sounds Terrific, is liable for penalty under Section 112(a) of the Customs Act, 1962? (c) Is Shri J.S. Marwah, proprietor of M/s. J.D. Enterprises liable for penalty under Section 112(a) of the Customs Act, 1962? Our answers to these questions are as under :- 4. Were the goods imported eligible for exemption under Notification No. 21/01-Cus. (Srl. No. 325). 4.1 The declared description of the goods, in question is "Flat Panel Display for Electronic Data Processing Machine" or "Plasma Monitor for computers" and the classification claimed in some bills of entry is under heading 84.71 and in othe....
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.... 30% 8528.21 - Colour 30% 8528.22 - Black and white or other monochrome 30% 8528.30 - Video projectors 30% 85.31 Electric sound or visual signaling apparatus (for example, bells, sirens, indicator panels, burglar or fire alarms), other than those of heading 85.12 or 85.30 8531.10 - Burglar or fire alarms and similar apparatus 30% 8531.20 - Indicator panels incorporating liquid crystal devices (LCD) or light emitting diodes (LED) 15% 8531.80 - Other apparatus 30% 8531.90 - Parts 30% 4.2.1 As per HSN Explanatory Notes to heading 85.28, "this heading covers video monitors which are receivers connected directly to the video camera or recorder by means of co-axial cables, so that all the radio-frequency circuits are eliminated. They are used by television companies or for closed-circuit television (airports, railway stations, steel plants, hospitals, etc.). These apparatus consist essentially of devices which can generate a point of light and display it on a screen synchronously with ....
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...., the goods would be correctly classifiable under 84.71. The question now arises as to whether the same would be eligible for concessional rate of duty under Notification No. 21/02-Cus. (Srl. No. 325). 4.4 Notification No. 21/02-Cus., dated 1-3-2002 prescribes concessional rate of duty for the goods of description and falling under Chapter Heading as mentioned in column (3) and column (2) respectively of table annexed to this notification. Srl. No. 325 of the table annexed to this notification mentions concessional rate of duty of 15% for "Flat Panel Display of a kind used in Automatic Data Processing Machine and Telecommunication operators and falling under Sub-heading 8531.80." 4.4.1 From the description of the goods as given on the Bills of Entry -"Flat Panel for Automatic Data Processing Machine/Plasma Monitors for computers", which has been confirmed by the Customs authorities on examination, it is clear that the goods are monitors meant for use with Automatic Data Processing Machine and, accordingly, as discussed above, the same would be classifiable under Heading 84.71 and not under 85.28. But what is covered under Srl. No. 325 of the table annexed to Notification No. ....
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....free clearance of consignments of tags imported by EIDIL and the second allegation against him is that in respect of import of Plasma Monitor by M/s. Sounds Terrific and M/s. Sight & Sound India, the description was deliberately misdeclared in order to avail concessional rate of duty. 6.2 As regards the first allegation of producing forged AEPC certificate, the Commissioner (Appeals) in his Order-in-Appeal has dropped this charge holding that the allegation of forgery cannot be accepted particularly when the production of AEPC certificate was not required under the said notification for claiming exemption and it is beyond comprehension as to why somebody would take a risk to forge something, forging of which is not going to give him any benefit. He also observed that AEPC certificate alleged to have been forged by Shri Marwah was not made part of the relied upon documents of the show cause notice. The department has not filed any appeal against this part of the order of the Commissioner (Appeals) and, hence, the Commissioner (Appeal)'s finding on this point become final. What now remains to be decided is, as to whether Shri Marwah has deliberately misdeclared the description of ....