TaxTMI 
TaxTMI 
2015 (9) TMI 1136
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....itorial waters of India. The appellant used to assist ONGC in contracting with overseas vendors for procurement of second hand logging tools and spares required on hire basis for oil well drilling operations. There was no outright sale of such goods either to the appellant or to ONGC and the title of the imported tools and spares remained with the overseas vendor. As per contract, the CIF value of any tools which were lost in the sea during operations was recovered from ONGC and in most cases the said tools and spares were re-exported after being used for the ONGC work. IN the year 1998, the DRI initiated investigations and asked certain information from the appellant regarding the import of logging tools and spares for ONGC contract. The appellant produced the documents and the statement of Shri Sudhir Pai was recorded. After scrutiny of the documents, it was revealed that in a few instances, there was a difference between the values declared to the Customs in the invoices submitted to the Customs at the time of import vis-à-vis the values stated in the documents available in the appellant's file. Thereafter a show-cause notice was issued on 29.9.1991 demanding customs ....
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....as able to obtain essentiality certificate for the import of the said goods. It is further submitted by the learned Counsel that after being used for ONGC work most of the goods were re-exported back to the overseas owners of the goods and consequently even if any duty was payable, most of it is eligible for refund as draw back. If this contention was not taken as correct then also the appellants are liable to pay a small amount of duty as the appellant has already paid Rs. 2 crores during the course of investigation. It is also submitted that the difference in value declared to the customs and reflected in the documents were explained by Shri Sudhir Pai during the course of investigation as the values declared to the Customs were the depreciated value of the old and used equipment actually imported for ONGC work, whereas the values shown in the documents from the possession shows the value of new parts. Therefore, the value of new parts cannot be considered as true value for the importation of used and old parts. The said explanation has not been considered by the adjudicating authority. Except from the documents reflected from the possession of the appellant, no other evidence or....
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....were made by courier agency, the courier agency is required to file bill of entry therefore the courier is the importer. In case of hand baggage, the passenger who brought the baggage is the importer. In case of the imports were made through sea, ONGC has to file bill of entry as importer. This position has not been disputed by the Revenue. Therefore, the liability of payment of duty cannot be fastened on the appellants as the appellants are neither the importer of the goods nor the owner of the imported goods as per the agreement between the ONGC and the foreign supplier which read as under:- "d) M/s. SASL Imports logging tools and spares required for rendering the services towards the oil well drilling operation either on its own name or in the name of the contracting agency. Majority of the imports are from their parent or associated firms located in Dubai, France, Canada and United States. There is no outright sale of the imported goods to M/s. SASL, Mumbai or the contracting agency. The service charges are paid by the contracting agency to the parent firm directly. The title of the imported tools and spares remains with the parent firm even though M/s. SASL or the con....
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....on of the goods, the goods were re-exported after use by ONGC therefore, the goods are not liable to pay any duty. It is also not disputed that the equipment in dispute were used on board rigs which were rendering services to ONGC in the Mumbai Offshore area beyond the territorial waters of India therefore once goods are being imported in India and are being cross the territorial waters, they are said to be exported from the country as held by the Hon'ble Apex Court in the case of CC v. Sun Industries - 1988 (35) ELT 241 (SC). 8. With these observations, we hold that as the appellants are neither importers nor they claim to be owner of the goods therefore the appellants are not liable to pay duty. Further, as per Section 85 of the Customs Act, 1962 the goods are entitled for exemption of duty. 9. But we find that vide letter dated 29.9.2005 the appellants have admitted that the appellants were not opposed the confirmation of duty to the extent of Rs. 1,84,08,757/- if the penalties on the appellants are waived which is reproduced here-in-under: "In response to a query raised by Your Honour, it was stated on behalf of our clients that our clients would not oppose a....
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....r the same to the appellant and (iii) few consignments by sea/air. Based upon the information collected by the Directorate of Revenue Intelligence, an investigation took place and it was found the value of the spare parts while clearing through courier service or import through sea/air was mis-declared and the value declared was much much lower than the actual value of the spare parts. In case of hand baggage, it was found that the employees of the appellant-Company did not declare the said parts or declared very very low value. After passing through the Customs, the same were handed over to the appellant. Investigation also revealed that they got two sets of invoices, one indicating correct value and the other indicating a very low value and the second invoice was presented to the Customs at the time of clearance. Investigation also revealed that the appellant has written to their counter-parts in their own offices abroad to make two sets of invoices and mis-declaration in value was done at the instance of officials in the project office of the appellant. In certain correspondence they have also indicated that the value should be 25% of the actual value and in some cases they indi....
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....effective rate of duty correctly in respect of various imports. 3. After hearing rival submissions and perusal of case records, we are of the opinion that the impugned order is not sustainable at it has computed the duty liability without applying the exemption Notification prescribing effective of duty from time to time. We also observe that penalties have been imposed both under Section 112 and under Section 114A which are mutually exclusive. The Commissioner has also not quantified the amount of penalty under Section 114A and has merely stated that the appellants are liable to pay mandatory penalty as envisaged under Section 114A. In view of the foregoing, we have no option but to set aside the order-in-original and remand the same for re-adjudication with the direction that appropriate effectives rates of duty should be applied, the appellants should be heard and while determining the penal liability due consideration should be given to the fact that the appellants have paid the duty amount even before the issue of show-cause notices. 4. The appeal is allowed by way of remand." 13. It would thus be seen from the said order of the Tribunal the purpose of rem....
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....the written submissions. In my view, it is not correct to entertain such plea at this stage more so, when they have accepted the duty and penalty liability due to importation of the goods through courier, through their own employees and through sea/air at the beginning of investigation itself and investigating officer did not note details on these aspects. Remand direction was only relating to quantification of duty and penalty. I also find that in the appeal the re-quantified amount has not been questioned by them and, therefore, appellant seems to be satisfied with the re-quantification. 16. Even if for some reasons it is accepted that the appellant is entitled to raise such a plea even at this stage, I proceed to examine on merit. My learned Brother has relied upon the decision of the Hon'ble Bombay High Court in the case of Union of India v. Jupiter Exports (supra). I have gone through the said judgment. The fact in that case was that the appellant obtained an advance licence by manipulating certain export documents. The manipulation led to higher entitlement of duty-free goods. Later-on they sold/transferred the said licence to some other parties. Certain goods were imp....
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....oods brought as baggage were by appellant's employees as per appellant's direction. Goods were collected by them abroad from appellant's office and were handed over to appellant in India. Such employees have only acted as carrier and smuggled the goods on behalf of the appellant. 17. Section 28 of the Customs Act under which demands were raised stipulates serving notice on the person chargeable with duty. Further Section 2(26) of the Customs Act, 1962, defines the "importer" in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner or any person holding himself out to be the importer. In the present case it is not in dispute the spare parts have been sent by the appellant's offices abroad or appellant's associate's offices abroad and were to be received by their project office in India. ONGC was to pay the rent charges for such spare parts/equipment that were being used for their work. Ownership of the goods was with the appellant alone. Even the goods were in physical possession of the appellant. All the spare parts received by the courier were in the name of the appellant. ....
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....namely:- (a) goods in respect of which an exemption from the levy of duty applicable to hundred per cent export oriented undertaking or to units in a free trade zone, as defined under Section 3 of the Central Excise and Salt Act, 1944 (1 of 1944), is claimed. (b) goods imported under the Exports Promotion Capital Goods Scheme or the Duty Exemption Scheme specified in Chapter VI and Chapter VII respectively of the Export and Import Policy (1 st April 1992 - 31 st March, 1997) published under the Ministry of Commerce Public Notice No. 1-ITC(PN)/92-97, dated the 31 st March, 1992 as amended from time to time; (c) goods imported against any other licence issued under the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992); (d) goods imported by or on behalf of a person who is related to the consignor within the meaning of Rule 2 of the Customs Valuation (Determination of Price of Imported Goods) rules, 1988; and (e) goods in respect of which the proper officer directs filing of a bill of entry in such form. Thus the said regulation provides that the assessment and clearance of goods is on behalf of consignees. Thus con....
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....ess and until they have connived with the consignee). If any duty is short paid due to mis-declaration in value or any other reason, same has to be paid by consignee. In view of this position, appellant is the importer/chargeable to pay duty and not the courier agency. Incidentally, appellant is also the owner of goods. 19. As far as hand baggage is concerned, the spare parts were supplied by the appellant's offices abroad, were brought by the appellant's employees and after passing through the Customs were handed over to the project office of the appellants and the ownership of the goods as also effective control remained with the appellants. By non-declaring or under declaring the value of spare parts, during baggage clearance individual employees have committed irregularities and are also liable to penalties. However, if such employees would have declared the correct value/description at the time of passing through the Customs, they would have paid the duty and in turn they would have collected from the appellant, as they were only carrier and their role was nothing more than the carrier. During initial investigation itself the appellant has accepted the duty and othe....
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....e view that oil rigs are vessels/ships and spare parts of such vessels will therefore cover by the definition of ship stores. It is nowhere the case of the appellants that the spare parts imported are that of oil rigs so as to claim the same as ship stores. They are only providing the services of wire line testing and measurement services to the ONGC. These services may be provided while carrying out the operation based upon oil rigs. However the same are not part of oil rigs. Spare parts imported are parts of certain equipments used by the appellant while providing earlier mentioned services viz. wireline testing and measurement service. Thus prima facie spare parts cannot be considered as ship stores. I also note that the appellants have not produced any catalogue or literature either at the time of original investigation nor at the time of adjudication or at the time of first round of litigation or 2 nd round of litigation before this Tribunal to establish that a particular spare part is meant for a particular equipment and that equipment can be considered as ship stores as defined in Section 2(38) of the Customs Act. The said section defines stores means goods for use in vessel....
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.... can reasonably expected of it, but failed or faulted in some minor or inconsequent aspects which cannot be described as the "essence" or the "substance" of the requirements. Like the concept of "reasonableness", the acceptance or otherwise of a plea of "substantial compliance" depends upon the facts and circumstances of each case and the purpose and object to be achieved and the context of the prerequisites which are essential to achieve the object and purpose of the rule or the regulation. Such a defence cannot be pleaded if a clear statutory prerequisite which effectuates the object and the purpose of the statute has not been met. Certainly, it means that the Court should determine whether the statute has been followed sufficiently so as to carry out the intent for which the statute was enacted and not a mirror image type of strict compliance. Substantial compliance means "actual compliance in respect to the substance essential to every reasonable objective of the statute" and the court should determine whether the statute has been followed sufficiently so as to carry out the intent of the statute and accomplish the reasonable objectives for which it was passed. Fiscal statute g....
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....authorities becomes, very much necessary before a concession can be given. In the absence of filing such a declaration in the required Form 14, there is no opportunity for the authorities to verify. Therefore the petitioner Company has definitely failed to fulfil an important obligation under the law though procedural. The learned Counsel, however, submitted that even now the authorities can verify the necessary records which are audited and submitted to the authorities and find out whether the material was used in its own undertaking or not. We do not think we can accede to this contention. Having failed to file the necessary declaration he cannot now turn around and ask the authorities to make a verification of some records. The verification at the time when the raw material was still there is entirely different from a verification at a belated stage after it has ceased to be there. May be that the raw material was used in the industrial undertaking as claimed by the petitioner Company or it may not be. In any event the failure to file the necessary declaration has necessarily prevented the authorities to have a proper verification. 7. In Kedarnath Jute Manufacturing Co.....
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....a condition that the person claiming the exemption shall furnish a declaration form in the manner prescribed under the section. The liberal construction suggested will facilitate the commission of fraud and introduce administrative inconveniences, both of which the provisions of the said clauses seek to avoid." It can thus be seen that the submission namely that the dealer, even without filing a declaration, can later prove his case by producing other evidence, is also rejected. This ratio applies on all fours to the case before us. As already mentioned the concession can be granted only if the raw material is used in the industrial undertaking seeking such concession. For that a verification was necessary and that is why in the rule itself it is mentioned that a declaration has to be filed in Form 14 facilitating verification. Failure to file the same would automatically disentitle the Company from claiming any such concession. In the present case, appellant has not even clearly told under which provision he is claiming the benefit. 24. I have gone through the judgement of Amership Management Pvt. Ltd. (supra). In the said judgement the Hon'ble Bombay High Court held ....
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.... each equipments and use of the same so as to enable to Revenue to examine whether the said spare parts can be considered as ship stores. Appellants have also to provide details of the goods sent to rigs and when they received back and re-exported. 25. My learned Brother has quoted the judgment of Hon'ble Bombay High Court in the case of Repro India Ltd. (supra). I have gone through the said judgement. The said judgement is in the context of CENVAT credit taken as inputs used in the manufacture of printed books and export thereof. The issue was relating to Rule 6(6)(v) vs. Rule 6(1) of the CENVAT Credit Rules, and liability created under Rule 6(3)(6. In this context Hon'ble Bombay High Court observed that only if petitioner does not export the printed goods and do not maintain the account as contemplated by Rule 6(2) ibid he petitioner would be required to pay 10% on the sale price of printed goods not so exported. The facts of present case are totally different. The issue is relating to Customs duty on imported goods which were clandestinely smuggled through Baggage or cleared through courier/sea/air by misdeclaring the value and description. No procedure whatsoever sti....
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....le Revenue has taken the value of new spare parts. Learned Advocate has also quoted the statement of Shri Sudhir Pal. We are unable to agree with this contention. Spare parts are required to replace a defective part. Normally, spare parts are new and unused. It is only when a new and unused part is not available one may use an old part as spare part. Under ITC Policy, old spare parts are not allowed to be imported. There are hundreds of consignment in the present demand. No correspondence or any evidence has been brought on record to establish that even a single consignment was that of old part. On the contrary, e-mail/correspondence establishes directions to mis-declare the value. Employees not declaring the goods in the baggage and hence the contention needs to be out-rightly rejected. 28. A penalty of Rs. 1 lakh is imposed on Shri Sudhir Pai, second appellant. Correspondence recovered clearly establishes his role in the whole episode of misdeclaration/smuggling. Penalty on him is correctly imposed and is not excessive. Impugned order is this regard is upheld. 29. In view of the above, we dismiss both the appeals. Difference of Opinion In view of Difference of Opinion....
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....tions of the Customs Act and under the circumstances the appellants cannot claim the benefit as ship stores or that the goods were immediately re-exported back. Even the Tribunal has remanded the matter to examine this issue. Hence, this issue cannot be raised at this stage, and benefit of ship stores, re-export etc. cannot be extended as held by Member (Technical). 3. Whether in the case of imports through courier, since Bill of Entry is filed by the Courier Agency therefore the courier is the importer and not the appellant as held by Member (Judicial) Or Courier agency acts as an agent of the appellant consignee, while filing a consolidated Bill of Entry for all consignees, and appellant consignee is the importer and person chargeable to duty in respect of his consignments as held by Member (Technical). 4. In case of hand baggage, the passenger who brought he baggage is the importer and hence duty cannot be demanded from appellant as held by Member (Judicial) Or In the case of hand baggage also duty is chargeable from the appellant as goods were brought by appellant's employees without declaring or declaring but under-decl....
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....gs to the appellant or their associate and sent at their instance, the appellant admitted the duty liability at the time of investigation thereby stopping further investigation and the fact that during the first round of litigation that is before the adjudicating authority or before the Tribunal, the appellant did not dispute the duty liability and the matter was remanded by this Tribunal for the limited purpose of quantification of the duty amount keeping in view that the applicability of duty exemption notifications prescribing effective rate of duty and the penalty under Section 112 and 114A to be separately specified, appellant cannot be allowed to raise the issue that they were not importer or person chargeable to duty at this stage as held by Member (Technical). b. Whether the appellant can be permitted to raise the issue that the goods are ship stores, meant for use beyond the territorial waters of India and thereafter to be re-exported back and hence no duty can be charged as allowed by Member (Judicial). Or The goods imported are not ship stores as per the definition under Section 2(38) of the Customs Act particularly in view of the fact that the....
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....ity in respect of 4 consignments of spare parts imported by sea/air, and no evidence is produced that bill of entry was filed by ONGC. Moreover, goods were shipped by appellant, received by appellant and used by appellant for providing the service to ONGC under the circumstance appellant is to be held person chargeable to customs duty as held by Member (Technical). f. Keeping in view the facts and circumstances, no duty chargeable from the appellant as held by the Member (Judicial) Or Keeping in view the facts and circumstances of the case, duty is chargeable and collectable from the appellant as held by Member (Technical) g. No penalty is imposed by the Member (Judicial) in view of the fact that the appellants are not liable to pay duty but as they are not liable to pay duty but as they are not contesting the confirmation of duty against them. Or Penalty is imposable under Section 112 of the Customs Act in the facts and circumstances of the case on both the appellants irrespective of contesting or contesting duty liability as held by the Member. 2. Heard both sides and perused the records. Before dealing with the points of d....
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....o the documents provided by the Appellant, statements of various personnel of the Appellant company were recorded on the question, as to who had imported the groups and whether appropriate duty of Customs had been paid on the goods imported for ONGC contract. 2.4 Shri Sudhir Pai in his statement dated 6.8.1998 and Shri Edgar Gonzales in his statement dated 29.6.1998, clarified that the imports were made by ONGC, who were directly liaising with the Customs, and that the Appellant was merely assisting ONGC in clearing their consignments expeditiously, being their service provider. It also emerges from these statements that in case of emergency, some of these imports were made through courier/or were personally carried as hand baggage. The relevant extract from the statement of Shri Sudhir Pai dated 6.8.1998 as also that of Shri Edgar Gonzalwes dated 29.6.1998 is extracted below: Extracts from Statement of Sudhir Pai dated 6.8.1998 "..............Imports are made in the name of the clients. The clients liaise with Customs Authorities but we assist to clear the consignments expeditiously as we are the service providers, same is also true with obtaining clearances from DG....
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....rted being old and used, they had been invoiced as per their depreciated value in accordance with the Standard Guidelines of Schlumberger. The relevant extract of the statement of Mr Sudhir Pai dated 18.5.1998 reads as under: "..................In this case the value has been fixed as per the Standard Guideline of equipment depreciation by us and accordingly the goods were dispatched as per the said invoice approved by me. I say that since we have reduced the price for depreciation purpose and declared a depreciated price to Customs we had no malafide intention to undervalue the goods but because of circumstantial compulsion we have declared as depreciated rate......................." 2.7 In the course of investigations, the Appellant's personnel clarified that there were any intention to evade any duty of Customs and that imports were made in the aforesaid manner in emergencies to met contractual obligations of ONGC, which is a Government of India undertaking engaged in oil exploration works of national importance. With a view to prove their bonafides, an amount of approximately Rs. 2,00,00,386/- crores was deposited and it was prayed under cover of letter dated 22....
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....etails of all the imports made through hand baggages, courier and sea ports where appropriate duty was not paid, are tabulated in the annexure-A. While preparing the annexure, as far as imports through courier are concerned, since M/s SASL expressed its inability to furnish the courier documents, the Customs duty paid at the nominal value is not considered and the duty is being demanded at the original value of the imported consignments without any deduction of the value declared to the Customs at the time of clearance. As far as imports through sea ports are concerned, the duty is demanded only on the differential value." 2.9 In its defense, the appellant under cover of its letters dated 1.3.1999 and 10.11.2000 contended that: (a) The demand for duty against it was misdirected and misconceived as the appellant was not the importer. The appellant had neither actually imported the goods, nor was it the owner or the person holding itself out as the importer, so as to become liable to pay duty. The definition of importer under the Customs Act, 1962 was cited in this regard. (b) Even otherwise and regardless of the question as to who was liable to pay duty, no duty....
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....Section 114A and has merely stated that the appellants are liable to pay mandatory penalty as envisaged under Section 114A. In view of the foregoing, we have no option but to set aside the Order in Original and remand the same for re-adjudication with the direction that appropriate effective rtes of duty should be applied, the appellants should be heard and while determining the penal liability due consideration should be given to the fact that the appellants have paid the duty amount even before the issue of Show Cause Notices. 4. The appeal is allowed by way of remand. 2.12 In re-adjudication proceedings, the appellant reiterated the submissions about it not being the importer, goods being ship stores, goods having been exported and in addition it stated as under cover of its letter dated 29.9.2005 that; "In response to a query raised by Your Honour, it was stated on behalf of our clients that our clients would not oppose a confirmation of customs duty to the extent of Rs. 1,84,03,780.37 which has been computed in Annexure 'F' to our clients' earlier appeal to the CESTAT, a copy of which is Annexure 1 to their written submissions dated 6 th December 2....
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....h the submissions urged by the Appellant and the Respondent on the issues of difference urged before me. 3.1 The first question of difference is essentially whether the CESTAT had vide its order dated 17.4.2003 remanded the matter back only for applying the correct duty rates as held by Member (Technical) or the remand was unqualified one, leaving it open to the appellant to urge all its contentions. 3.2 On behalf of the Appellant it has been contended that, it never accepted the liability to customs duty as an importer and that in all replies and pleadings both before the adjudicating authorities or two occasions and before the CESTAT on the first occasion, they had categorically contended that the demand for duty was misdirected as they were not the importer. The order passed by the CESTAT remanding the matter back to the adjudicating authority did not limit the scope of remand only to determination of effective rate of duty keeping in mind the applicable exemption notification and corresponding imposition of penalty. The order of the CESTAT also does not state that the matter was being remanded only for a limited purpose and that all the other contentions had been given up....
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....d either any written or oral concession on the part of the appellant with respect to any of legal contentions and the issue. It is also significant to note that even the Respondent Commissioner who adjudicated the matter on remand did not construe the scope of the remand as being limited only to determination of the effective rate of duty after applying the applicable exemption notification. The Respondent Commissioner has in his remand order dealt with all contentions urged by the Appellant. The said order has also not been reviewed nor an appeal filed against the same on the ground that the same was beyond the scope of the remand directions. I am therefore of the view that the scope of the remand order was not confined to determination only of the effective rate of duty. The judgements cited by the Ld. AR Additional Commissioner on the question of resjudicata cannot be applied to the facts of the present case. I am, therefore of the view, that the Ld. Member Judicial was correct in holding that all the contentions urged by the Appellant could be considered by this Tribunal. I also find from the record that Appellant had right since the very beginning contended that they were not ....
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....ing of Member (Technical) to the effect that there was no evidence produced to show that the goods imported were infact used as 'stores', was concerned, it was submitted that there was no dispute ever raised by the Revenue on this aspect and it was not open for the CESTAT to traverse beyond the scope of the dispute before it. 4.2 The Ld. AR (Additional Commissioner) contended that Section 85 contemplates a specific prior permission from the proper officer inasmuch as if what has been imported is ship stores the same can be stored in a warehouse only after the proper officer permits the goods to be warehoused without the goods being assessed to duty. Unless the proper officer so directs, neither the goods can be warehoused nor can the same escape assessment to duty. 4.3 I have considered the submissions of both sides on this issue and am in agreement with the findings of Member (Technical) to the effect that there is no evidence on record which would conclusively establish that the goods imported were to be used as ship stores. The term 'stores' has a specific connotation under the Customs Act and has been defined to mean "goods for use in a vessel or aircraft and incl....
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....ment is required to file a bill of entry, with the proper officer for home consumption or for warehousing the goods. In the instant case since the goods were not imported for home consumption, i.e. for use within India but were to be transshipped to the Continental Shelf and Exclusive Economic Zone of India to which the Customs jurisdiction did not apply at the relevant time, as such no demand for customs duty can be sustained on such goods which have been brought into India for being transshipped. It also clearly comes out from the record that the goods after being used were brought back to the main land for re-export outside the country. In my view for this movement also, there can be no liability to customs duty as the goods were exported outside the country. 4.5 The Ld. (AR) has however contended that by virtue of the decision of CESTAT in the case of Larsen and Toubro vs Commissioner of Customs reported in- Appeals No. C/1154/2001 duty was payable even in respect of goods which were used in the Continental Shelf and Exclusive Economic Zone of India to which the Customs jurisdiction did not apply. I have gone through the said decision and find that the same has been rendered....
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....ng to a thing under consideration; a definite locality or location. It also means an open space or square in a city. Therefore, in international trade the ship beyond the territorial waters of a country would be a place outside the country, if the goods are taken to that place, that is to say, a situation outside the territorial waters of a country and the tile to the goods are taken to a place outside India." The decision of the Apex Court in the case of Sun Industries applies in all fours to the facts of the present case and consequently no customs duty could have been demanded. 5. The third question of difference essentially is whether in case of imports through Courier, in case of any short levy/non-levy whether it is the courier who is the importer or it is the consignee who is the importer? 5.1 The Appellant has contended that the expression 'importer' has been defined in Section 2(26) to mean, in relation to any goods at any time between their importation and the time they are cleared for home consumption includes any owner or the person holding himself out to be the importer. It is clear from the definition that till such time that the goods are cleared for hom....
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.... as under: "3(d) .......... majority of the imports are from their parent or associated firms located in Dubai, France, Calcutta and United States. There is no outright sale of the imported goods to M/s SASAL Mumbai or the contracting agency. The service charges are paid to parent firm directly. The tile of the imported tools and spares remains with the parent firm............." "8.................The nature of the transaction i.e. without the sale of the imported goods and without sending consequential remittances abroad against the specific imports with the contracting agency and the parent firm facilitated M/s SASL to prepare parallel set of invoices reflecting a nominal value exclusively for customs purpose..................." Quite apart from the above, I also agree with the Appellant that, prior to the goods being cleared for home consumption the law provides with an option either to the person causing the import, owner of the goods or any other holding himself out to be the owner to come forward and file the Bill of Entry as an importer. One of the three having elected to become the importer, such a person cannot subsequently resile from the consequences....
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....aken to pay duty during investigations, the investigating authorities did not identify who the actual carriers were and that it was not open to the Appellant to now contend that they were not the importer. 6.3 I agree with the Appellant that they are not the owners of the goods and consequently the sole premise on which the demand has been confirmed against them by the Respondent cannot be sustained. Insofar as the finding of the Member (T) which has been reiterated by the Ld AR that the Appellant having undertaking to pay tax the investigating authorities did not investigate to find out who had actually brought in the goods, cannot by any stretch of imagination countenanced. It is settled law that tax cannot be levied by acquiescence or agreement. It was for the investigating authorities to have raised the demand against the person from whom it was legally due. They could have however legally sought appropriation of the amount deposited as duty by the appellant based on their authorization. However, having failed to raise the demand against the person from whom it is due revenue authorities cannot fasten the same on the person who in the course of investigation deposited the sa....
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.... paragraphs, I am of the view that the Appellant not being the importer, as also the goods having been transshipped/re-exported, the duty liability could not be fastened upon the Appellant. However I hasten to point out her that the Appellant having time and again, before different authorities accepting that it did not wish to claim refund of the duty paid and that it was contesting the matter only in view of the penalty imposed on it. Given the undertaking made by the Appellant they would not be eligible for refund of the duty deposited by the Appellant even though the same was not recoverable from them, confirmation of duty is erroneous. 9.1 The seventh question of difference is essentially whether penalty was imposable on the appellant under Section 112? 9.2 I find that the sole ground assigned for imposing penalty by the Respondent is that there has been an evasion of customs duty. As I have observed in the preceding paragraphs, legally no demand could have been sustained against the Appellants. I accordingly hold that the reasons assigned by the Respondents for imposing penalty are not sustainable. I also find that from the statement recorded in the aforesaid investigati....