TaxTMI 
TaxTMI 
2014 (9) TMI 1039
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....n 114A (B) Redemption fine Rs. 4,04,530/- under Section 125 Redemption fine Rs. 7,81,100/-under Section 125 Custom duty Rs. 28,86,865/- under Section 28 Penalty Rs. 28,86,865/- under Sec 114A 2 C/505/08- MUM Shivkumar Raghuveer Goyal proprietor of M/s. Saccha Soudha Pedhi (A) Penalty Rs. 10,00,000/- under Section 112(a) (B) Penalty Rs. 6,00,000/- under Section 112(a) 3 C/506/08- MUM Ashok Raghuveer Goyal (A) Penalty Rs. 7,50,000/- under Section 112(a) (B) Penalty Rs. 5,00,000/- under Section 112(a) 4 C/343/08- MUM Shri Bhumish Shah (A) Penalty Rs. 10,00,000/-under Section 112(a) (B) Penalty Rs. 6,00,000/- under Section 112(a) The facts of the case is that the Appellant i.e. M/s. Saccha Soudha Pedhi is engaged in importing spices namely - Star Aniseeds, Cassia, White pepper, Zanzibar cloves, Madagascar Cloves etc. from M/s. IJIMASIA Pte. Ltd., Singapore and other foreign suppliers. Directorate of Revenue Intelligence, Mumbai Zonal Unit received an intelligence that the Appellant importing the said spices, has grossly undervalued the imported goods as compar....
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....hri Shivkumar Raghuveer Goyal and Ashok Raghuveer Goyal. From the records and grounds of appeal, the submission of appellants is that the demand was confirmed in the impugned order only on the statement of Shri Bhumish Shah and Shri Ashok Raghuveer Goyal. Shri Ashok Raghuveer Goyal is neither a proprietor nor employee of the appellant therefore, reliance cannot be placed on his statement. As regard this, Shri Ashok Raghuveer Goyal has clarified during cross-examination. Shri Ashok R. Goyal could not have represented appellant firm accordingly his statement cannot be used against appellant. That the ld. Commissioner heavily relied upon recovery of cash of Rs. 1.02 crores from Mr. Bhumish Shah, in this regard appellant submitted that recovery of this amount not relevant to undervaluation of the goods, whereas, in his statement Shri Bhumish Shah stated that this amount is sale proceeds of the spices sold in Indian market on behalf of various parties. The ld. Commissioner relied upon fax messages received from foreign suppliers M/s. Ijimasia Pte Ltd., Singapore and also market weekly and public ledger prices but Adjudicating Authority has not independently verified and substantiated by....
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....ct and legal and the same may be sustained. 6. We have carefully considered the records, grounds of appeal and the submissions made by both the sides. Undervaluation of various spices was unearthed after detail investigation and consequently confirmed by the ld. Commissioner. In the investigation incriminating documents like correspondence of Shri Bhumish Shah with the foreign supplier M/s. Ijimasia Pvt. Ltd., were relied upon, the said correspondences/documents clearly contains the detail of the price of spices to be declared for assessment bill of entry before custom and parallely there are documents which contains details of actual price on which the transaction between foreign supplier M/s. Ijimasia Pvt. Ltd., and the appellant has taken place. In the statement of Shri Bhumish Shah, he has categorically stated that - (i) He was dealing in the brokerage of imported spices like Star Aniseeds, Cassia, White pepper, Zanzibar cloves, Madagascar Cloves, dry ginger etc. He was appointed as a indenting agent in Indian Market by M/s. Ijimasia Pvt. Ltd. He also acted on behalf of various marketers including M/s. Saccha Soudha Pedhi. He used ....
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....; All the consignments indented through him since the appointment as indenting agent of M/s. Ijimasia Pvt. Ltd., were imported at undervalued prices. (vi) Sale proceeds of consignments sold in the market were held back by him so as to pursue and expedite payments to M/s. Ijimasia Pvt. Ltd.; that the Indian Currency amount Rs. 1.02 crore recovered from his residence on 16-3-2001 and the sale proceeds of goods held back by him for pursuing the payments to M/s. Ijimasia Pvt. Ltd.; that out of total amount approximately Rs. 75-80 lakhs belong to M/s. Saccha Soudha Pedhi; that he had no concern with the said amount of Rs. 1.02 crore as the same was the amount accumulated out of sale proceed of spices of foreign origin belonging to various firms. 7. (i) On further investigation a statement of Shri Ashok Raghuveer Goyal presented himself as a Manager of M/s. Saccha Sauda Pedhi was recorded under Section 108 of Customs Act, 1962. He interalia stated that he has joined his brother Shri Shivkumar Raghuveer Goyal and managing the affairs of proprietary concern viz. M/s. Saccha Soudha Pedhi, Pune; the said firm was engaged in import of various sp....
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....CHA M/s. Ranchoddas & Company. He admitted that the said consignments were undervalued and had declared lesser price in the import documents. He has given details of declared rate and actual rate of the said six consignments. They had undertaken to pay custom duty on the actual value instead of the value contained in the import documents declared at the time of clearance. (v) There after M/s. Saccha Soudha Pedhi, in pursuance to admitting undervaluation by Shri Ashok Raghuveer Goyal, voluntarily submitted demand draft worth Rs. 10 lakhs towards differential duty. 8. On the basis of the statement as well as documents recovered from Shri Bhumish Shah, it was observed by the ld. Commissioner that the invoice prices in respect of six consignments of star aniseeds imported by M/s. Saccha Soudha Pedhi in the range of US$ 1415 TO US$1550 per metric ton, whereas the actual value contained in the said faxes were ranging from US$ 7150 to US$7700 per metric ton. Similarly, invoice price of consignment each of Cassia and white pepper was US $ 1050 AND US$3000 respectively. Whereas the actual value has contained in the fax message was US$ 1200 and US$370....
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.... thereupon we hold that the valuation of the goods determined by the ld. Adjudicating Authority is legal and correct and consequently the differential demand of custom duty on such value and corresponding interest and penalties imposed under Section 114(a) of Customs Act, 1962 is also upheld. As regard confiscation of the goods and redemption fine of Rs. 50,20,000/-, Rs. 4,04,530/-, Rs. 7,81,100/- and 96,93,910/- for redemption of goods, we are of the considered view that the confiscation is not sustainable for the reason that the goods were not available physically for confiscation. Confiscation of goods can only be made of physically available goods, if the same is seized and either lying under seizer or if provisionally released. In the present case goods are not available for redemption, hence the confiscation and redemption fine is bad in law. Our view is supported by following case laws : 2013 (290) E.L.T. 299 (Tri. - Ahmd.) INDU NISSAN OXO CHEMICAL INDUSTRIES Versus COMMR. OF CUS., KANDLA Para 10. - Another submission made by the learned Senior Counsel with which we find ourselves unable to disagree is that penalty cannot be imposed in lieu of redemption fi....
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....der Section 125 of the Act in respect of the goods held to be liable for confiscation but which are not available for confiscation, provisions of Section 125 are attracted only in the cases when either the goods are physically available for confiscation or the goods had been released provisionally against the Bond and as per the terms of the conditions of the Bond, the person from whose possession/control the goods had been seized, is bound to produce the goods whenever called upon to do so. We are supported in this view from the judgment of Hon'ble Punjab & Haryana High Court in case of Commissioner of Customs, Amritsar v. M/s. Raja Impex (P) Ltd. reported in [2008-TIOL-280-HC-P&H-CUS = 2008 (229) E.L.T. 185 (P&H)] wherein the Hon'ble High Court held that when the goods are not available for confiscation for the reason that the same had been released unconditionally, the redemption fine under Section 125 could not be imposed, that Hon'ble Supreme Court's judgment in case of Weston Electronic Components v. Commissioner of Customs, New Delhi reported in 2000 (115) E.L.T. 278 (S.C.) is applicable only in those cases where the goods had been released against a bond executed by the per....
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.... imposed on the appellant Mr. Bimal Kumar Mehra under Section 112 of the Act both at Mumbai and Chennai. This submission is true insofar as the Chennai case is concerned, wherein separate penalties under Section 112 of the Act were imposed on 'M/s. Global Art' and Mr. Bimal Kumar Mehra (proprietor). The adjudicating authority could not have imposed two penalties of the same kind on the same person for the same offence. 'M/s. Global Art' and Mr. Bimal Kumar Mehra represent the same person. Therefore, the penalty imposed on Mr. Bimal Kumar Mehra in the Chennai case is set aside. 2007 (215) E.L.T. 193 (Tri. - Del.) SAI TRADING CO. Versus COMMISSIONER OF CUSTOMS, INDORE 7. As regards the appeals filed by the Revenue on the non-imposition of penalties on the individual by the adjudicating authority, we find that all these persons were either Proprietor or Partner of the firms which were indicted by the authority in the over valuation of the export of PVC shoes. It is settled law that the firm and the proprietor/partner are not different and hence once penalty is imposed on the firm, than the proprietor/partner need not be penalized again. In view of this settled law, the ....