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2012 (3) TMI 477
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..... M/s. Bajranglal Vijay Kumar, Kolkata Applicant, Importer, Proprietorship firm 16,51,308.21 5,46,308.81 3. M/s. Opel Trade Corporation, Kolkata Applicant, Importer, Proprietorship firm 9,54,150.43 Nil 4. Sh. Vijay Kumar Gupta Co-applicant, Director of . M/s. AVI Trexim Pvt. Ltd., Kolkata and Proprietor of M/s. Bajranglal Vijay Kumar, Kolkata 5. Sh. Sachin Gupta Co-applicant, Individual. Son of Sh. Vijay Kumar Gupta, Director of M/s. AVI Trexim Pvt. Ltd. He also signed several docu­ments and cheques in respect of import of cranes. 6. Sh. Karan Gupta Co-applicant, Individual, Nephew of Sh. Vijay Kumar Gupta, Responsible for maintai­ning records of imports made by M/s. AVI Trexim Pvt. Ltd., Kolkata and M/s. Bajranglal Vijay Kumar, Kolkata 7. Sh. Rajkamal Singh Co-applicant, Proprietor of M/s. Opel Trade Corporation, Kolkata TOTAL : 1,27,56,868 13,23,839 The above composite application received in the Secretariat of the Commission on 29-4-2011 was registered as SA (C) 96/2011. 2. No SCN was issued....
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....ght as prepaid. In fact the freight of the said goods was paid by the importers which formed a large part of the assessable value of the said goods. The differential amount of the undervaluation and freight was remitted by the applicants to the foreign suppliers and Shipping lines through unofficial channels. This modus operandi was adopted by the applicants in order to avoid payment of Customs duty on the freight component of the said goods. 2.3 The applicants hired services of one Sh. Madan Lalwani operating under CHA licence of M/s. M. Dharamdas & Co. (CHA No. 11/100). In respect of declaration of the value to the Customs authorities, the applicants in their application have submitted that the declared value of Rs. 40/- per Kg. of the said goods was suggested by the said Sh Lalwani. The said Sh. Lalwani used to collect 5% of the value of the cranes in cash from the applicants to facilitate smooth clearance of the said cranes. Sh. Vijay Kumar Gupta and Sh. Madan Lalwani were arrested by the DRI, Mumbai on 2-11-2010. The co-applicant Sh. Vijay Kumar Gupta was released on bail on 14-12-2010. 2.4 In the present application, applicant M/s. Opel Trade Corporation ....
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....pplication, their right of a written Show Cause Notice under Section 124 of the Customs Act, 1962. The applicants submitted that they have understood and are aware of the allegations and charges leveled against them during investigations. 2.7 The applicants have submitted that they fulfilled all the conditions for allowing their application to be proceeded with. The applicants prayed for settlement of their cases and grant of immunity from fine, penalty and prosecution. They also prayed for release of the 06 cranes, imported in the name of M/s. Opel Trade Corporation, lying under detention of the Revenue. Application allowed to be proceeded with : 3. A notice dated 5-5-2011 u/s 27C(1) of the Customs Act, 1962 was issued to the applicants and the co-applicants, asking inter alia, as to why their application should be allowed to be proceeded with. Vide their reply dated 11-5-2011 the applicants replied that their application may be allowed to be proceeded with as they complied with all the conditions stipulated u/s 127B of the Customs Act, 1962. The bar under Section 127L of the Customs Act, 1962 also did not apply as this was the first application filed by the app....
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....d to the applicant, the foreign supplier (M/s. R. Gupta Corporation, USA) firm being owned by the son of Sh. Vijay Kumar Gupta, Director of M/s. Avi Trexim Pvt. Ltd. and proprietor of M/s. Bajranglal Vijay Kumar. The DRI ascertained the actual freight paid for carriage of the said goods from the Shipping Lines and Shipping Agents. The difference in the valuation on the basis of 20% of FOB as freight and the actual freight paid as per the Revenue was as under : (a) M/s. Avi Trexim Pvt. Ltd. Rs. 71,23,514/- (b) M/s. Bajranglal Vijay Kumar Rs. 84,95,130/- (c) M/s. Opel Trade Corporation Rs. 14,67,613/-. 4.4 The DRI further submitted that contention of the applicant that no duty liability arose in respect of the cranes which were sold on High Sea Sales basis by them was totally incorrect. However, the DRI did not substantiate the same. Further, the DRI worked out the estimated differential duty liability in respect of the cranes imported and cleared by M/s. A.vi Trexim Pvt. Ltd. and M/s. Bajranglal Vijay Kumar as under : S. No. Applicant's Name Admitted additional duty liability Duty liability as per value taken from impo....
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.....2 The representative of the DRI opposed proceeding with the application for settlement of the case, submitting that the present application was not maintainable in law as no SCN was issued, which was a mandatory condition for filing an application for settlement. Adding further, the representative submitted that in the case of M/s. Opel Trade Corporation, the application was not maintainable even under Section 127B(2) of the Act as action in respect of six (6) cranes imported in its name was initiated only on 8-3-2011 and 180 days from the said date were not over as yet. The representative further submitted that the applicant had admitted its additional duty liability on the basis of calculating the freight at 20% of the value of the cranes whereas they had paid a freight amount far in excess of the same. In fact, as per the DRI, the applicants must be in the know of the actual amount of freight paid by them and yet they have not submitted duty calculations on the basis of the actual freight paid by them. This shows that the applicants have not made true and full disclosure. 5.3 The representative of the DRI also opposed provisional release of the cranes submitting th....
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.... Notice as early as possible. In the event DRI was unable to complete the investigation and issue SCN within 3 months, they will furnish a report at the end of three months from the date of the Interim Order on the status of the investigations, and likely further time required for issue of show cause notice. Provisional release of Cranes : 6.1 Vide their letter dated 28-8-2011, in compliance of the directions contained in the Interim Order dated 26-7-2011, the applicants submitted copies of Bank Guarantees and PD Bonds to the Secretariat of the Commission. However, instead of applying for provisional release of 22 cranes, as per the initial prayers of the applicants and as contained in the Interim Order dated 26-7-2011, the applicants applied for provisional release of only 8 cranes. The details of the Bank Guarantees and PD Bonds are as under : S. No. Name of Applicant PD Bond Amount & Date Bank Guarantee No., Date and Amount Remarks 1. M/s. AVI Trexim Pvt. Ltd. (For 2 cranes) Bond dated 23-8-2011 for Rs. 80,32,956/- 014GT01112250001, dated 13-8-2011 of HDFC Bank for Rs. 11,42,714/- Differential duty for provisional release ....
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....ot claim ownership of the said six cranes imported in his name. ii. Sh. Karan Gupta : He is nephew of Sh. Vijay Kumar Gupta and his statement was recorder on 10-8-2011 under Section 108 of the Customs Act, 1962. He stated that he looked after the sale and import of cranes at Kolkata office in liaison with Sh. Mukesh Agarwal at Mumbai. He stated that where deals of the cranes had been finalized, he noted the details of the transactions vis-à-vis the cranes in a diary. He admitted that the cranes were imported by misdeclaring the value of the same and the differential amount was transferred abroad through hawala operators. He submitted that on sale of these cranes to local buyers, a huge amount of the sale proceed was collected in cash. He admitted to have carried out all the work on the instructions of Sh. Vijay Kumar Gupta. iii Sh. Sachin Gupta : He is the son of Sh. Vijay Kumar Gupta and his statement was recorded on 10-8-2011 under Section 108 of the Customs Act, 1962. He admitted that he had knowledge of import of cranes caused by their company M/s. Avi Trexim Pvt. Ltd. and all the work relating to import and trading was looked after by his fat....
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....exim Pvt. Ltd. 910639, dated 8-9-09 Shri Mohd. Umar Ansari, Director, M/s. Elephas Equipment Ltd. and Director M/s. Ansari Cranes Pvt. Ltd., Pune US $ 16,000 Rs. 6,91,200 9,96,613 28,65,000 Difference Rs. 18.6 Lakhs 7. 956961, dated 9-7-10 Sh. Mohd. Mustafa, Prop, of M/s. Supreme Engineering and Fabrication Works. Hyderabad US $ 27,000 Rs. 12,67,650 15,86,259 47,00,000 Difference Rs. 31.00 Lakhs 8. 927056, dated 24-12-09 Sh. Suresh K.K., Prop, of M/s. Shree Ganesh Crane Service, Navi Mumbai US $ 17,000 Rs. 7,94,750 10,02,715 30,00,000 Difference Rs. 20.00 Lakhs 9. 868801, dated 4-11-08 Sh. Dilawart Sujatkha Pathan, M/s. V.M.Crane Service, Khopoli US $ 25,000 Rs. 9,97,920 12,96,553 44,50,000 Difference Rs. 31.50 Lakhs 7.4 The DRI, Mumbai has submitted that a few buyers of cranes from applicants are yet to respond to the summons issued to them. Statements of all such buyers were required to be recorded for the purpose of completion of investigations in the case. The DRI, Mumbai has further submitted that considering the appa....
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....lared value of Rs. 3,18,70,460/- CIF in respect of the 16 used cranes, imported and cleared in the name of M/s. Bajranglal Vijaykumar, from Mumbai port during the period from January, 2008 to November, 2008, (details as per "Annexure-D-1") should not be rejected under the provisions of Section 14(1) of the Customs Act, 1962 read with the provisions of Rule 12 of the Customs Valuation Rules, 2007; (ii) the value of the aforesaid 16 used cranes, imported and cleared in the name of M/s. Bajranglal Vijaykumar, from Mumbai port during the period from January, 2008 to November, 2008, should not be redetermined as Rs. 7,20,74,089/- CIF (details as per "Annexure-D-1"); (iii) differential duty amounting to Rs. 1,16,80,031/- leviable on the aforesaid 16 used cranes, imported and cleared in the name of M/s. Bajranglal Vijaykumar, on the basis of the redetermined value of Rs. 7,20,74,089/- CIF (assessable value of Rs. 7,27,94,830/-) should not be demanded and recovered under the provisions of Section 28(1) of the Customs Act, 1962, with interest under the provisions of Secti....
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.... on each of them jointly and severally. (B)(I): M/s. Avi Trexim Pvt. Ltd., S/Shri Vijay Kumar Gupta, Sachin Gupta and Karan Gupta are required to show cause to the adjudicating authority as to why : (i) the declared value of Rs. 3,99,44,287/- CIF in respect of the 24 used cranes, imported and cleared in the name of M/s. Avi Trexirn Pvt Ltd., from Mumbai port during the period from November, 2008 to October, 2010, (details as per "Annexure-D-2") should not be rejected under the provisions of Section 14(1) of the Customs Act, 1962 read with the provisions of Rule 12 of the Customs Valuation Rules, 2007; (ii) the value of the aforesaid 24 used cranes, imported and cleared in the name of M/s. Avi Trexirn Pvt. Ltd. from Mumbai port during the period from November, 2008 to October, 2010, should not be re-determined as Rs. 11,44,44,254/- CIF (details as per "Annexure-D-2"); (iii) differential duty amounting to Rs. 1,79,32,536/- leviable on the aforesaid 24 used cranes, imported and cleared in the name of M/s. ....
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....erally. (B)(III): M/s. Avi Trexim Pvt. Ltd., S/Shri Vijay Kumar Gupta and Sachin Gupta are required to show cause to the adjudicating authority as to why penalty under Section 114AA in relation to the aforesaid 24 used cranes, imported and cleared in the name of M/s. Avi Trexim Pvt. Ltd., from Mumbai port during the period from November, 2008 to October, 2010, (details as per "Annexure-D-2"), should not be imposed on each of them jointly and severally. (C)(I): M/s. Avi Trexim Pvt. Ltd., S/Shri Vijay Kumar Gupta, Sachin Gupta, and Karan Gupta are required to show cause to the adjudicating authority as to why : (i) the declared value of Rs. 26,50,600/- CIF in respect of the 2 used cranes, imported and cleared in the name of M/s. Avi Trexim Pvt. Ltd., from Mumbai port (details as per "Annexure-D-3") should not be rejected under the provisions of Section 14(1) of the Customs Act, 1962 read with the provisions of Rules 12 of the Customs Valuation Rules, 2007; (ii) the value of the aforesaid 2 used cranes, imported and cleared in the name of M/s. Av....
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....short levied in respect of the 2 used cranes, imported and cleared in the name of M/s. Avi Trexim Pvt. Ltd., from Mumbai port (details as per "Annexure-D-3") as aforesaid, should not be imposed on each of them jointly and severally. (C)(III): M/s. Avi Trexim Pvt. Ltd., S/Shri Vijay Kumar Gupta and Sachin Gupta are required to show cause to the adjudicating authority as to why penalty under Section 114AA in relation to the aforesaid 2 used cranes, imported and cleared in the name of M/s. Avi Trexim Pvt. Ltd., from Mumbai port (details as per "Annexure-D-3") as aforesaid, should not be imposed on each of them jointly and severally. (D)(I): S/Shri Vijay Kumar Gupta and Raj Kamal Singh are required to show cause to the adjudicating authority as to why :- (i) the aforesaid 6 used cranes, imported and cleared in the name of Raj Kamal Singh (Prop. : M/s. Opel Trade Corporation) from Mumbai port (details as per "Annexure-A-4") with a declared value of Rs. 1,85,17,850/- CIF (assessed value of Rs. 2,62,92,590/- CIF) should not be held liable to confiscation under Section 111(d) [read with provisions of Section....
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....rted- 'DRI/MZU/B/Inv-02/2010-11, dated 13-12-2011 issued by ADG, DRI, answerable to Commissioner of Customs (Import) having his office at New Custom House, Ballard Estate, Mumbai' Similarly, In column 6(c), the following were sought to be inserted- 1. The total duty ascertained by DRI is Rs. 6,63,20,459/-, as against duty amount on declared value, of Rs. 2,41,19,601 which includes :- a. Rs. 2,09,31,966/- as against Rs. 92,51,935/- on declared value in M/s. Bajranglal Vijaykumar (16 cranes), b. Rs. 3,90,43,089/- as against Rs. 1,03,98,577/- on declared value in M/s. AVI Trexim Pvt. Ltd. (26 cranes), c. Rs. 63,45,404/- as against Rs. 44,69,089/- on declared value in M/s. Opel Trade Corporation (6 cranes). In column 6 (d), the following were sought to be inserted - 'Dispute relates to levy, assessment and collection of duty, in relation to SCN No. DRI/MZU/B/lnv-02/2010-11, dated 13-12-2011' In column 110(a), the followi....
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....e applicants crave leave to refer and rely upon the documents forming part of SCN when produced during the course of hearing. 9.3 The applicants in true spirit of settlement are enclosing herewith as additional evidence in support of FOB value declared at US ports, copies of the purchase invoices of M/s. R.K. Gupta Corporation, USA now made available by them. These copies are hereto annexed and marked as Exhibit-EE'. It would be evident from the same that the value declared by M/s. R.K. Gupta Corporation before the US Customs were not less than their actual purchase value in US, and that the relationship had not influenced the declaration of value. Any of these documents, if found to be false and incorrect, any immunity granted by this Hon'ble Commission would be liable to be withdrawn on that ground alone as per Section 127H(3) of the Customs Act, 1962. Therefore, the applicants would not gain anything by making misleading averments, or by concealing any material particular or by giving any false evidence, to seek immunity from this Hon'ble Commission. 9.4 The SCN demands duty by adopting two erroneous methods. In those cranes in respect of which the private record....
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.... party in connivance with the importer. A copy of the said order dated 21-4-2011 passed by this Hon'ble Commission in the matter of M/s. ABS International is hereto annexed and marked as Exhibit- 'GG' 9.7 There is no reason to deal with the case of the applicants with a different yardstick, and therefore the revised assessable value may please be accepted for the purpose of settlement of the case and for considering the grant of immunities from fine, penalty and prosecution. Hearing held on 17-1-2012 : 10.1 In the hearing held on 17-1-2012 the applicants submitted that the residual method for calculation of assessable value and duty liability adopted by the Revenue was not correct, as the purchase invoices issued by the supplier were available, details of which were submitted by them at the time of personal hearing. He submitted that values given in the said invoices should be taken into account to ascertain the value and duty liability on the impugned goods. The Revenue wanted time to examine the said invoices and the submissions made by the applicant at the time of personal hearing. 10.2 The Bench directed the ld. Advocate for the applicant as well as t....
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....p;The co-applicant Sh. Mahesh Agarwal was issued a notice under Section 127C(1) of the Customs Act, 1962 asking as to why his application should be proceeded with. Vide his letter dated 6-2-2012, the co-applicant Shri Mahesh Agarwal, through his Advocate, submitted that in order to settle the case in its entirety his application is incidental to the main applicant's application. The applicant prayed that his application may be allowed to be proceeded with. The applications filed on 17-1-2012 by the co-applicant was allowed to be proceeded with under Section 127C(1) of the Customs Act, 1962 vide orders dated 7-2-2012 of the Hon'ble Bench on file. 12.2 Vide Commission's letter dated 8-2-2012 a report under Section 127C(3) of the Customs Act, 1962 was called from the jurisdictional Commissioner in respect of the application filed by the co-applicant Sh. Mahesh Agarwal. Extension of time for settlement of case : 13. After two hearings (i.e., on 8-7-2011 and 17-1-2012) the matter came at a crucial stage and the issues also boiled down to the methods of valuation adopted by the DRI. In the last hearing held on 17-1-2012, the applicants submitted certain invoices issued....
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....17/- 4 2746214, dated 9-2-11 80000 3676000/- 107000 4916650/- 1186575/- 5 2746209, dated 9-2-11 35000 1608250/- 49200 2260740/- 545603/- 6 2746202, dated 9-2-11 80000 3676000/- 109000 5008550/- 1208754/- TOTAL : 4,03,000 1,85,17,850/- 5,72,200 2,62,92,590/- 63,45,404/- 14.2 The aforesaid 6 cranes were assessed at a total value of Rs. 2,62,92,590/- and a duty of Rs. 63,45,404/- was paid by the applicants in respect of the same at the time of clearance on 7-3-2011. As these 6 cranes were about to be given 'out of charge', the DRI received intelligence that these cranes in fact belonged to M/s. Avi Trexim Pvt. Ltd. and were attempted to be cleared in the name of M/s. Opel Trade Corporation, who are only name lenders. Scrutiny of the import documents revealed that the initial value declared for the said goods was only Rs. 1,85,17,850/- which was enhanced to Rs. 2,62,92,590/-. The said 6 cranes were therefore detained by DRI on 8-3-2011, i.e., subsequent to assessment and payment of duty by the applicants. In the show cause notice the assessed value of the said 6 cranes....
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....ing investigations, Shri Vijay Kumar Gupta was asked to submit the original invoices of cranes imported by them or in alternative the original purchase invoices of M/s. R.K. Gupta Corporation, USA. However, Shri Vijay Kumar Gupta did not submit these documents. Therefore, in absence of the data relating to actual transaction value, the value of the aforesaid cranes have been determined by applying the Custom Valuation Rules, 2007 and based on the local sale prices available in the original private records recovered from the premises of the applicants. The reasons, method and manner in which the values of these cranes have been re-determined are explained in detail in the show cause notice dated 13-12-2011 issued to the applicants. The Revenue reiterates the same and craves leave to refer to arid rely upon the same in the ongoing proceedings before this Commission. 14.4 The DRI further submitted that as regards certain contentions raised by the applicants in the present application, point wise reply is submitted for the consideration of the Settlement Commission as under : a. As regards para 2 of the present application, it is submitted that the applicants are ....
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....s finally assessed duty and has not been disputed. The applicants are wrongly trying to take credit of the difference on duty paid on the assessed values at the time of clearance of 6 cranes and the duty payable on the declared values of the said 6 cranes. This amount of Rs. 18,76,515/- is not available to them. 5. 4-10-2011 7,64,810/- Recovered by DRI towards duty from M/s. Manu Carrier Corporation (as per letter dated 4-10-2011) From the private records of the applicants, it was gathered that one P&H 650 crane (Sr. no. 30527 was sold to M/s. Manu carriers for a consideration of Rs. 41,50,000/- plus sales tax. The partner of M/s. Manu carrier also confirmed that he had purchased the above cranes for Rs. 41.5 Lakhs plus sales tax. Based on the sale price the CIF value of the crane was worked out to be Rs. 30,10,402/- (as against the declared CIF value of Rs. 18,47,659/-). Admitting the re-determined CIF value, partner of M/s. Manu Carrier voluntarily paid the above amount towards the differential duty, interest and other liabilities in respect of the above crane. It is not understood as to why the above amount paid by a third party can be adjusted....
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....n made by the applicants. The applicants have not accepted any arbitrary valuation obtained by the DRI through Chartered Engineers as the actual value of the goods without any influence of the relationship, with supportive evidence is available on record. 15.4 The applicants have further stated that they are aware of the consequences of submitting false evidences, which would render the application to fail, and even immunities granted may be revoked. Hence, they would not gain anything by submitting false documents for settlement of their cases. None of the documents submitted by the applicants have been proved to be incorrect in the investigations. The applicants have co-operated fully for the settlement of their cases by making true and full disclosures. 15.5 The applicants have prayed for condonation of the delay in filing the present submissions. The submissions were to be filed by 28-1-2012 whereas the same bear the date of 31-1-2012 and have been filed on 1-2-2012 in the Secretariat of the Commission. The applicants have prayed for hearing in the matter before passing any final order. Submissions of the jurisdictional Commissioner : 16. The jurisdic....
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....e applicant has further affirmed in his Affidavit that he had worked out the duty liability in the application for settlement, on the basis of the above correct transaction values shown in the certificates backed by authentic data of the values declared before US Customs taken as FOB value, and by adding thereto notional insurance @ 1.125% of FOB value and notional freight @ 20% of FOB value, to arrive at the CIF value. By adding 1% of CIF, to such CIF value, the assessable value was computed. The applicable duty on the same was calculated as per prevailing exchange rate on the date of importation and the interest under Section 28AB @ 13% was computed on the differential duty liability. 17.3 After admission of the case, a SCN bearing file No. DRI/MZU/B/Inv-2/2010-11, dated 13-12-2011 was issued by ADG, DRI. On receipt of the same, the differential duty liability was revised by him. For computing the revised differential duty liability, instead of notional freight @ 20% of FOB value, the actual freight as provided in the SCN was taken to arrive at correct assessable value for the purpose of settlement. Accordingly following insertions/amendments were sought by him ....
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....rporation) -at Exhibit - 'AA' hereto 18,76,515/- 5. 4-10-2011 Recovered by the DRI towards duty from M/s. Manu Carrier Corporation (as per latter dated 4-10-2011 copy of which is annexed herewith for ready reference at Exhibit-'BB') 7,64,810/-. 6. By requesting for encashment of Bank Guarantees 11,42,714/- 7. 17-1-2012 3,19,823/- 8. 18,52,556/- 9. 9,32,178/- 10. 28-4-2011 Less - amount towards duty on declared value in respect of 2 cranes seized at Port 6,39,691/- TOTAL : 2,00,18,121/- This is against total liability of Rs. 1,91,02,202/- towards differential duty (Rs. 1,65,46,763/-) and interest (Rs. 25,55,439/-) G. In true Spirit of settlement, the applicant also submitted as additional corroborative evidence copies of the purchase invoices of M/s. R.K. Gupta Corporation, USA in respect of the subject cranes. These additional corroborative evidence were submitted in support of the correct transaction value declared in the certificates issued by....
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....lleged that no differential duty is further demanded as the value of these cranes was assessed on the basis certificate of the same Chartered Engineer. I say that I have provided correct transaction value for even these six cranes, and the certificate of Chartered Engineer is not reliable for the afore stated reasons. K. The authenticity of the documents by the applicants to justify the admitted FOB value for the purpose of settlement, which are referred and relied upon in the SCN and show actual transaction value, are not disproved in investigations. The applicant has stated that the same, therefore, cannot be discarded as proposed in the SCN. L. The applicant has stated that there is not even any allegation that he and his son/exporter in USA colluded to declare lesser value at US Ports, to claim any advantage or benefit whatsoever. Even applying the test of preponderance of probability, neither there is anything to suggest that the value declared in US was underdeclared transaction value in FOB terms, nor any motive alleged for under declaring the transaction value at US ports. The direct and credible evidence of correct FOB value transacted in the ma....
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....- 'An immunity granted to a person under sub-section (1) may, at any time, be withdrawn by the Settlement Commission, if it is satisfied that such person had, in the course of the settlement proceedings, concealed any particulars, material to the settlement or had given false evidence, and thereupon such person may be tried for the offence with respect to which the immunity was granted or for any other offence of which he appears to have been guilty in connection with the settlement and shall also become liable to the imposition of any penalty under this Act to which such person would have been liable, had no such immunity been granted'. S. The applicant has stated that any of his submissions or evidences tendered by him before this Hon'ble Commission, if found to be false and incorrect, any immunity granted by this Hon'ble Commission would be liable to be withdrawn on that ground alone. T. The applicant has stated that whatever stated above is true and correct according to the best of his knowledge and belief and he believes the same to be true. Hearing held on 28-2-2012 : 18.1 Hearing in the case was held on 28-2-2012. The applicant....
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....n Rules, 2007. He therefore, requested that the duty demanded in the SCN only be considered for the settlement of the case. He also requested for imposition of appropriate fine and penalty on the applicants as well as co-applicants. He also prayed that immunity from prosecution should not be granted to the applicants as well as co-applicants. Findings : 19.1 The Bench has carefully examined the case records including the submissions made by the applicants and co-applicants and the DRI in writing as well as during the course of personal hearings. 19.2 There are two main allegations against the applicants. Firstly, on the valuation front, they imported cranes and underdeclared the values thereof. The applicants further resorted to non-declaration of the actual freight amount to the Customs authorities leading to the assessable value being suppressed. The second is that the export documents submitted by the applicants after the same were obtained by them from the US Department of Commerce, Chief Foreign Trade Division, are not acceptable to the DRI on their face value without verification and authentication of the same. 19.3 The DRI has recovered certain pri....
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.... for rejection of the said documents stated by the DRI are that the same are not acceptable on their face value without verification and authentication of the same. In view of the above, the DRI has valued the goods as under and demanded differential duty accordingly : No. Name of the applicant Value declared Value re-determined Differential duty demanded 1. M/s. Bajranglal Vijaykumar (16 cranes) 3,18,70,460 7,20,74,089 1,16,80,031 2. M/s. AVI Trexim Pvt. Ltd. (24 cranes) 3,99,44,287 11,44,44,254 1,79,32,536 3. M/s. AVI Trexim Pvt. Ltd. (2 cranes, live consignment) 26,50,600 39,49,994 3,13,399 4. M/s. Opel Trade Corporation (6 cranes) 1,85,17,850 2,62,92,590 Nil* TOTAL : 9,29,83,197 21,67,60,927 2,99,25,966 [*Full duty on redetermined value paid at the time of clearance of the cranes.] 19.5 As per the DRI, a conspiracy was hatched by the co-applicant Shri Vijay Kumar Gupta (who is a partner in the applicant firm M/s. Bajranglal Vijaykumar and a Director of the applicant company M/s. Avi Trexirh Pvt. Ltd., Kolkata), Shri Ranjan Gupta (son of Shri Vijay Kumar Gupta, who owns....
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....ng any false evidence, to seek immunity from the Hon'ble Commission. 19.8 The applicants have further argued that the SCN demands duty by adopting two erroneous methods. As per one method, where the private records show sale of the said cranes by the applicants either in USD or in Rupees, certain deductions have been made to arrive at the arbitrary deemed assessable value on residual method. Whereas, as per the other method, where there is no indication of actual sale value in seized private records, the certificates from a Chartered Engineer in India have been obtained to arrive at the value at the time of manufacture in the country of manufacture. On that basis the FOB value at the load port has been calculated by the Chartered Engineer in India. The applicants have argued that the authenticity of the documents submitted by the applicants to justify the admitted FOB value for the purpose of settlement, which are referred and relied upon in the SCN and show actual transaction value, are not disproved in investigations, and therefore the same cannot be discarded. The applicant has admitted the following value and resultant differential duty which has been admitted as the ad....
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....es tendered by him before this Hon'ble Commission, if found to be false and incorrect, any immunity granted by the Commission would be liable to be withdrawn on that ground alone. 19.11 The Bench finds that the applicants have declared the FOB value of the impugned goods based on the documents containing the declared export values of the said goods before the U.S. Customs which are duly certified by U.S. Department of Commerce, Chief Foreign Division. These values provided by the U.S. authorities are also backed by purchase invoices of U.S. sellers of the impugned goods to M/s. R.K. Gupta Corporation, U.S.A. who is the supplier of the said goods to the applicants. The Bench finds that the FOB value now declared by the applicants based on the aforesaid documents should form basis of arriving at the CIF value of the impugned goods rather than determining the assessable value of the goods based on sale price of the goods in India taken from the private records recovered from the applicants. Moreover the sale values of only 28 cranes out of 48 cranes imported by the applicants are available. In the opinion of the Bench the FOB values certified by the U.S. authorities should be ....
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....or grant of immunity from fine, penalty and prosecution in view of their true and full disclosure and prompt payment of duty and interest, in view of the disclosures made by them and payment of duty and interest, their offence is mitigated to some extent, but considering the gravity of their misdeeds, misdeclarations and connivance in evading payment of appropriate Customs duty, they deserve to be suitably penalised. 20. In view of the above discussions, the following order is passed in terms of the provisions of sub-section (5) of Section 127C of the Act : ORDER Customs Duty : The Customs duty liability is settled at Rs. 1,65,46,763/-. The applicants have claimed to have paid the entire differential duty liability. The individual differential duty liabilities of the three applicants are as under :- S. No. Name of the applicant Amount of differential Customs duty settled 1. M/s. Bajranglal Vijaykumar 36,00,968 2. M/s. AVI Trexim Pvt. Ltd. 1,16,37,449 3. M/s. Opel Trade Corporation 13,08,345 TOTAL : 1,65,46,763 Interest : The total interest in respect of the three applicants is settled at Rs. 25....