TaxTMI 
TaxTMI 
TaxTMI 
2010 (9) TMI 1022
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....however, since the goods are not physically available, I refrain from imposing any redemption fine. (c) I demand recovery of differential duty of Rs. 29,91,431/- on mis-declared/under invoiced goods, imported vide Bills of Entry bearing serial numbers 303 dated 12-5-2000 and 589 dated 7-10-99, in terms of proviso of Section 28(1) of the Customs Act, 1962 read with Sections 14 and 46 of the Customs Act, 1962 and Customs Valuation (Determination of Price of Imported Goods) Rules, 1988. (d) I demand recovery of interest on the differential duty of Rs. 35,61,148/- at the appropriate rate in terms of Section 28AB of the Customs Act, 1962. (e) I impose penalty of Rs. 35,61,148/- (Rupees Thirty-five lakhs sixty one thousand one hundred and forty-eight only) on M/s. R.R. Enterprises in terms of Section 114A of the Customs Act, 1962. (f) I impose a personal penalty of Rs. 3,63,993/- (Rupees Three lakhs Sixty-three Thousand Nine Hundred and ninety-three only) on Shri Ravi Ganeriwal, Managing Partner of R.R. Enterprises, Sanathnagar, Hyderabad under Section 112(a) of Customs Act, 1962. 2. As is evident from the above order, M/s. R.R. Enterprises had imported good....
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....evade payment of appropriate duty, (b) that, by their conduct, M/s. R.R. Enterprises had rendered the goods liable to confiscation under Section 111(m) of the Customs Act and had rendered themselves liable to penalty under Section 112 of the Act, and (c) that Mr. Ravi Ganeriwal had also, by his commissions, rendered the goods liable to confiscation thereby attracting penalty under Section 112 of the Act. The show cause notice also proposed a penalty on the importer under Section 114A of the Act. In relation to the past imports, the show cause notice invoked the extended period of limitation under the proviso to sub-section (1) of Section 28 of the Act. All the proposals in the show cause notice were contested by the noticees. It was in adjudication of this dispute that the Commissioner passed the aforesaid order. 3. On a perusal of the records, we find that Bill of Entry No. 726 dated 14-11-2000 covers the live consignment of "Paper Phenolic Copper Clad Laminates" declared to be "C grade/rejects". The same description of goods is found in the connected invoice, packing list and certificate of origin (copies of all these documents are available). The case of the appellants is ....
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....ied the document under cover of letter dated 29-11-2000. We note that this letter itself disclosed the connection between the above invoice and Bill of Entry No. 726 dated 14-11-2000. Shri Nitin Shah, in his statement, admitted that he had helped R.R. Enterprises to procure the goods from SIPL, Singapore. He, however, denied being an indenting agent for R.R. Enterprises. Going by the admitted conduct by Mr. Nitin Shah, we find that he was acting like an indenting agent for R.R. Enterprises and therefore his statement will have to be examined in this perspective. Mr. Nitin Shah stated that he was approached for supply of Paper Phenolic Copper Clad Laminate of C grade in the form of panels/sheets at the rate of USD 0.80 per kg. He also stated that the goods had been supplied from South Korea. However, he also stated to the effect that he had no role in any fraudulent transactions. Mr. Ravi Ganeriwal gave full account of the transactions in his statements. He indicated the mode of procurement of the goods, the price at which the goods were supplied to local customers, the end use of the goods etc. He also referred to the parallel documents viz. invoice of the manufacturer (Doosan Corp....
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.... obtained on 60 days credit and were not cleared by the importer and therefore the ownership of the goods should be held to have remained with the overseas supplier (SIPL); (vi) There is no documentary evidence to indicate any conspiracy between the importer and anybody else to get undue benefits from the Customs, nor was any allegation to this effect made in the show cause notice; (vii) There is neither any allegation nor any evidence to the effect that any money was clandestinely paid by the importer to SIPL. 5. The ld. SDR has reiterated the findings of the Commissioner. Referring to the various documents and statements, the ld. SDR has submitted that there is sufficient evidence of R.R. Enterprises having suppressed the genuine invoice of the manufacturer indicating correct description and value of the goods and having presented the trader's invoice indicating the goods to be of poor quality and of lower value, with intention to evade payment of appropriate amount of duty. It is submitted that the importer is a habitual offender and that similar cases were booked against them at Mumbai and Hyderabad. He has also referred to certain investigations conducted b....
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....the Indian Customs authorities. Ld. Counsel has made an attempt to play down the evidentiary value of this document by pointing out that this document was not authenticated by the authorities concerned. It was in this context that the Counsel referred to Section 139 of the Customs Act as also to certain decisions. In the first instance, we note that Section 139 of the Customs Act is applicable to documentary evidence gathered from abroad to be relied on in prosecution proceedings before criminal courts. The provision is not applicable to the present proceedings. Ld. Counsel has claimed support from the Tribunal's decision in V.K. Impex case (supra), which was affirmed by the apex court. After a perusal of the Tribunal's order, we find that the question considered therein was whether a photocopy of an unsigned document could be relied upon. We are not dealing with any such document in the instant context. The commercial invoice dated 28-9-2000 of Doosan Corporation Electro-Materials BG is a document duly signed by the manufacturer and, moreover, it is a document wherein all the material particulars of the goods were clearly indicated. For these reasons, we are not impressed with the....
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....appeal of R.R. Enterprises in relation to the live consignment. The order of the Commissioner is well-founded on concrete evidence. 9. Now the question to be examined is whether the quanta of fine and penalty imposed by the Commissioner on the importer in respect of the live consignment are reasonable. The fine imposed in lieu of confiscation of the goods is Rs. 5,24,250/-. The value of the goods as determined by the Commissioner is Rs. 20,97,000/-. Considering the parameters laid down under Section 125 of the Customs Act, we find the quantum of fine to be excessive in the facts and circumstances of this case. We are of the view that a fine of Rs. 2 lakhs (Rupees two lakhs only) will suffice the requirement of Section 125 in the facts and circumstances of this case. The penalty imposed on the importer under Section 114A of the Act is a composite penalty attributable to the live consignment and also the past two imports. Though we have found quantification of duty on the past imports, we have not come across any quantification of duty in respect of the live consignment covered by Bill of Entry dated 14-9-2000. Penalty under Section 114A is a duty-related penalty which needs to....
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....ink that the view taken in respect of the live consignment can be extrapolated mindlessly to cover the past imports. We have not found any evidence in support of the findings of misdeclaration of description and value, entered by the Commissioner in relation to the past imports. The only document on the basis of which these findings were entered in relation to the goods covered by Bill of Entry dated 12-5-2000 is an invoice, copy of which is available at page 93 of paper book Volume-II. The Revenue has considered this document to be an 'invoice' issued by Isola Asia Pacific (Singapore) Inc. to R.R. Enterprises. There is no mention of the name of the consignee/buyer in this document, nor does this document bear any date, nor is it duly signed. The Revenue has heavily relied on this document (so-called 'invoice') which indicates the name of the goods as "Glass Epoxy Copper Clad Laminates" and the value of the goods as USD 71,125. Ld. SDR has only reiterated the observations of the Commissioner in relation to this document. But we have found substance in the submissions of the Counsel. This document, with all the said infirmities, can hardly be accepted as a manufacturer's or trader's....