TaxTMI 
TaxTMI 
2009 (11) TMI 752
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.... of the value declared. The 12th consignment of fishing nets was imported in the month of May 2001. The relevant bill of entry was filed on 15-5-2001, wherein the value of the goods was declared as US $ 1640 for 460 sets of fishing nets on the basis of invoice No. A1/03005, dated 17-4-2001 issued by M/s. Khou Kaen Fishing Nets Factory Co. Ltd., Thailand. The Central Intelligence Unit (CIU) of the Customs gathered information of higher value of goods evidenced by an invoice of even number and date which also stood in the name of the above Thai company. This invoice indicated the price as US $ 1996 for 460 sets of fishing nets. The CIU conducted further investigations into the past imports of the assessee also, as part of which they recorded 3 statements from Shri Kamal Agarwal, director of the assessee-company under Section 108 of the Customs Act. On the basis of the results of investigations, the department proposed to confiscate the goods under Section 111 of the Customs Act and to impose penalty on the importer under Section 112 of the Act. The importer waived show-cause notice and requested for a lenient view. The original authority examined the records and, upon appreciation of....
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....ed by the 11 Bs/E, having revised assessable value of Rs. 45,82,471 are confiscated under Section 111(d) and (m) of the Customs Act, 1962. Since the goods are not physically available, I impose a fine of Rs. 9,00,000/- (Rupees nine lakhs only) in lieu of confiscation under Section 125 of the Customs Act, 1962 [Western Components Ltd. v. Commissioner - 2000 (115) E.L.T. 278 (S.C.)] 52. I impose a penalty of Rs. 15,22,580/- on M/s. Saan Nets P. Ltd. u/s 114A of the Customs Act, 1962. 53. I impose a penalty of Rs. 2,00,000/- (Rupees two lakhs only) on Shri Kamal Agarwal under Section 112(a) of the Customs Act, 1962." Appeal No. C/426/06 filed by the assessee and Appeal No. C/427/06 filed by Shri Kamal Agarwal are against the above order. 4. We have examined the records and heard both sides. Ld. counsel for the appellants has argued as follows : (1) The invoice dated 17-4-2001 showing higher value for the goods covered by bill of entry dated 15-5-2001 was apparently obtained by the investigating agency from an informer and such document could not be relied upon under Section 139 of the Customs Act. In this connection, counsel has relied on Orient ....
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....e ground of negation of natural justice. It is submitted that the bill of entry filed by third parties who allegedly imported identical goods around the same time were not supplied to the assessee and consequently the assessee had no opportunity to effectively contest the proposal to enhance the value of the subject goods. With regard to redemption fine imposed by the Commissioner, it is submitted that, as the goods were not available for confiscation, it was not open to the Commissioner to impose such fine. In this connection, ld. Counsel has relied on the Tribunal's Larger Bench decision in Shiv Kripa Ispat P. Ltd. v. CCE, Nasik - 2009 (235) E.L.T. 623 (Tri-LB). Counsel has also challenged the penalty imposed on Shri Kamal Agarwal. He submits that this penalty was imposed on irrelevant grounds which did not have anything to do with Section 112 of the Act. 5. On the other hand, ld. SDR submits that, on the facts and evidence available on record, the orders of both the Commissioners have only to be sustained. On the strength of case law, he submits that the demand of differential duty raised on the assessee can be sustained on the basis of the admission of liability made by Shri....
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....nowledge of the person concerned in it. On the principle underlying Section 106, Evidence Act, the burden to establish these facts is cast on the person concerned : and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty." On the standard of proof laid down by the Apex Court, ld. SDR submits that, in the instant case, the finding of the two Commissioners can only be sustained. As regards the goods covered by bill of entry dated 15-5-2001, it is submitted that the goods were available for confiscation at the material time and therefore the order of confiscation made by the original authority and sustained by the Commissioner (Appeals) cannot be faulted. On the same ground, the redemption fine imposed on the assessee in respect of that consignment is also sought to be justified. He has also argued in support of the corresponding orders of the Commissioner. 6. In his rejoinder, ld. counsel has made an endeavour to safeguard the retrac....
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....er of protest. In the circumstances, it cannot be said that the impugned findings are bad for want of evidence. In this context, some of the decisions cited by the ld. SDR are relevant. We have reproduced the relevant ruling of the Apex Court in an earlier part of this order. The standard of evidence required for the department to establish the guilt of a person under the Customs Act were laid down in those judgments of the Apex Court. Accordingly, we hold that the challenge in the present appeals against the enhancement of value and consequent demand of differential duty is bereft of merit. In other words, the assessee is liable to pay the balance amount of duty. In so far as the goods covered by bill of entry dated 15-5-2001 is concerned, as rightly pointed out by the SDR, these goods were available for confiscation. Admittedly, the value of these goods was misdeclared. Misdeclaration of value is a valid ground under Section 111(m) of the Customs Act for confiscation. Therefore, we have no hesitation to sustain the confiscation of these goods under the said provision of law. The goods were valued at over Rs. 5.17 lakhs on the basis of the genuine invoice of the supplier, which wa....