AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2013 (10) TMI 1005
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....ble to pay penalty under Section 112(a) of the Customs Act, 1962 and the quantum of penalty is justified?" 4. One M/s. Cardiac Research and Education Foundation (hereinafter referred to as "CARE") had filed bill of entry dated 15.09.2003 at Hyderabad through their Custom House Agent (CHA), M/s. Hansa Services (P) Ltd. M/s. CARE in the bill of entry had declared the item as "Da Vinci Surgical System (Endoscopic system)" classifying the said system under Custom Tariff item 90189011 and claimed the benefit of concessional rate of Customs duty under S.No.363(A) - List 37 - Item No.82 of Notification No.21/2002 - Cus dated 1.03.2002, which covered fiber optic endoscopes of different kinds. The said item reads as under:- "(82) Fibre optic endoscopes including, Paediatric resectoscope/audit resectoscope, Peritoneoscopes,Arthoscope, icrolaryngoscope, Fibreoptic Flexible Nasal Pharyngo Bronchoscope, Fibreoptic Flexible Laryngo Brochoscope, Video Laryngo Brochoscope and Video Oesophago Gastroscope, Stroboscope, Fibreoptic Flexible Oesophago Gastroscope." 5. Alongwith the Bill of Entry, M/s. CARE had submitted a commercial invoice dated 04.09.2003 of M/s. Intuitive Surgical Inc. for "IS 12....
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....t had advised M/s. CARE to submit the brochure which would have entitled M/s. CARE to make a claim of concessional rate of duty and had even suggested to M/s. CARE to add the words "Endoscopic System" to the description "Da Vinci Surgical System" in the Bill of Entry. He further held that the appellant had suggested to M/s. CARE to claim concessional rate of duty as they had imported two such systems under similar classification with concessional rate of duty. The Commissioner of Customs held that even though it was CHA, who had filed the bill of entry on behalf of CARE, the appellant had an important role in making declaration or clearance of the goods. In view of the evidence and submissions recorded, he held that the appellant M/s. J. Mitra & Bros. alongwith M/s. CARE had planned to misdeclare the goods to wrongly avail the exemption and it was the appellant M/s. J. Mitra & Bros. who had published the brochure of the said goods in such a manner that M/s. CARE could declare the product as an endoscope. 10. The Commissioner of Customs noted the submission of a partner of the appellant M/s. J. Mitra & Bros. that the brochure printed by them was for distribution among the delegates....
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....ther particular‟ with regard to goods. It was in the nature of claim made on the basis of a belief entertained and could not said to be a misdeclaration. The judgment relied upon by the learned counsel for the appellant is not applicable in the facts of the present case. This is not a case of a bonafide belief that the appellant had entertained or that he was uncertain about the applicability of the notification for exemption or otherwise. It was a clear case of misdeclaration. Benefit of exemption was not available and therefore the description of the system was deliberately altered. Brochure did not correctly describe the equipment for the purposes of availing the exemption. The statements of the officers of M/s. CARE show that the appellant was instrumental in wrong description of the system to bring it within the purview of the classification. All this was done deliberately to claim exemption that was otherwise not available. This is not a case of a belief that the appellant may have entertained but a deliberate and conscious effort to wrongly claim exemption. The said judgment is not applicable. 16. The only issue that arises then for consideration is as to what role ca....
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.... to do any act which act or omission would render the said goods liable for confiscation under Section 111 or any person who abets in the said omission or action liable for penalty of varying degrees. 19. Section 111 specifies the goods that are liable for confiscation. Section 111(m) makes the goods that do not correspond in respect of value or in any other particular with the declaration or transshipment liable to confiscation under Section 111(m). A person who does or has omitted to do any act which makes the goods liable for confiscation or abets in such doing or omission makes himself liable under Section 112(a) of the said Act. 20. During investigation, statement of Sh. Arun K. Tiwari, Secretary, M/s. CARE was recorded. He had stated that the appellant M/s. J. Mitra & Bros. had advised them to submit a brochure which they would furnish for customs clearance to avail concessional rate of duty. He also stated that the description "Endoscopic System" added in bracket to Da Vinci Surgical System in the bill of entry was as per the suggestion of the appellant M/s. J. Mitra & Bros. and it was the appellant M/s. J. Mitra & Bros, who had mentioned that the two said systems under si....
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....is the quantum of penalty imposed on the appellant M/s. J. Mitra & Bros. The Commissioner of Customs in the order-in-original had imposed a penalty of Rs.2,34,62,300/- on M/s. CARE Foundation for misdeclaration under Section 114(a). However, no penalty under Section 112 of the Customs Act was imposed on M/s. CARE, who were the importers. A penalty of Rs.5,00,000/- each was imposed on the Chairman and the Secretary for their active role in misdeclaration of the description of the goods under Section 112(a) of the Customs Act. A penalty of Rs.25,00,000/- was imposed on the appellant M/s. J. Mitra & Bros. for its active role in misdeclaration of the description of the goods. 25. CESTAT, vide the order dated 01.11.2012, held that as there was no demand under Section 28(8) of the Customs Act for duty short levied, so no penalty could have been imposed under Section 114A on M/s. CARE Foundation, the importer. The Tribunal, accordingly, quashed the penalty imposed under Section 114A. However, as no penalty under Section 112 was imposed on M/s. CARE Foundation by the adjudicating authority, the Tribunal also did not impose any such penalty. 26. As regards to the penalty imposed on the Se....