TaxTMI 
TaxTMI 
2016 (5) TMI 553
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....for such export. But unnecessarily redemption fine and penalties have been imposed. There was neither absolute confiscation of goods nor goods were contraband. However, department acted hyper technically to question the goods bringing the consol agent M/s. DHL Logistics Pvt. Ltd., into the scene and confiscated the goods even though appellant had never filed bill of entry. Therefore, Appellant no way being concerned with the import and M/s. DHL Logistics Pvt. Ltd., having filed bill of entry, imposition of harsh redemption fine and penalty on the appellant is uncalled for and unwarranted. If at all penalty and redemption fine is imposable, appellant should not be dealt harshly. 1.2 It was further submission of learned counsel that the Drugs and Cosmetics Act 1945 was misconstrued by the authority overlooking sub-rule (2) of Rule 41 of the Drugs and Cosmetics Rules, 1945. That rule does not permit any harsh action against the importer. For no reason the Customs authorities considered that the drugimported was prohibitory in nature. The exemption granted under Rule 45 of the Drugs and Cosmetics Rules, 1945 requires no license for import of drug of the nature imported. 1.3 Argui....
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....ell as penalty. 2.3 Revenue filed a copy ofletter dated 24.03.2016 from the Commissionerate explaining the action taken by the Department against the same appellant in respect of the past consignments. This appellant was habitual offender being importer of the offending goods. Therefore, it does not deserve any leniency. He relied on page 69 of the appeal folder to emphasise that this importer deliberately induced file amended Bill of Entry when he was in the scene of importing offending goods from the date of export thereof from abroad. The misdeclaration of the appellant is an offence when he evaded and attempted to escape from the scrutiny of law. 2.4 Para 61 of the Adjudication order was relied by the departmental representative to bring to light that the appellant was involved in questionable imports of life saving drug, in violation of law, for which, the Commissioner has rightly held him guilt. 3. Against the appellant Shri K. Ramlal Jain, Revenue submitted that he was also one of the conduits in the import of the prohibitory goods being a beneficiary. In one way or the other, both the appellants were intimately connected and were successful bidders to importlifesav....
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.... followed by HAWB, all on a sudden application was made by the M/s. DHL Logistics Pvt. Ltd., on 22.04.2013 to treat it as an importer of the impugned goods instead of M/s. Antoine & Becouerel Organic Chemical Co., appearing as importer of the offending goods in the MAWB and HAWB aforesaid. That raised question in the mind of Customs for which investigation proceeded to unearth the reason behind such filing and the truth behind that. They found that similar goods were imported from China by the appellant concern to India in the past vide bill of entry Nos.8845139, dated 24.12.2012, 9183769, dated 31.01.2013, 93317619, dated 14.02.2013 and 9694255, dated 29.03.2013. 9. According to Customs, the goods imported under the MAWB and HAWB aforesaid were drug and import thereof requires Form 10 licence under Drugs and Cosmetics Act, 1940. The appellant without having such a licence imported the same. When a detailed enquiry was made, appellant although stated that the goods are not drug it failed to provide the details of the buyers thereof for successive enquiry and ascertain as to whether those were meant for any other use other than the use as drug. 10. The appellant availed exempt....
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....Jain, was the real proprietor of the importer appellant and Sohanchand was benamidar. The importer influenced M/s. DHL Logistics Pvt. Ltd., to file application for amendment of the bill of entry holding outit to be importer of the impugned goods to escape scrutiny of investigation. However, such amendment was not permitted by the Customs authorities. 13. When a detailed investigation was carried out, the bank accounts of the importing concern in Union Bank of India, Sowcarpet Branch and ICICI Bank, Sowcarpet Branch revealed that those accounts were owned by Shri K. Ramlal Jainand crores of rupees were dealt in such accounts. That was corroborated from the statement of Shri P. Sohanchand, who was found to be a benamidar of Ramlal Jain and acted under his direction and instructions. 14. The Master Airway Bills (MAWB) presented to the Customs with the description of the goods and value thereof was negotiated through ICICI Bank, Sowcarpet, Chennai. On 25.3.2013, (page 69 of appeal folder) the invoice value of USD 87750 was discharged by the bank on behalf of its customer M/s. Antoine & Becouerel Organic Chemical Company, Chennai for an amount of USD 87750. Although, payment was m....
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....ree parties were made to serve their ill will. Investigation detected that the appellant-importer was a habitual importer of the life saving drug of aforesaid description without license. 17. The appellant-importer admitted that it had made remittances to the overseas supplier. Evidence in support of such payment was also adduced before adjudicating authority. So also it admitted ownership of the imported goods (Ref. para 44 of the adjudication order). Shri Ramlal Jain although denied the allegations against him as owner of the appellant-concern stating that Sohan Chand was the owner thereof, he failed to establish that leading any cogent and credible evidence in that regard. It is surprising how he operated the bank accounts as aforesaid dealing with crores of rupees to make the remittances, if Sohan Chand was the owner of the importing concern. Sohanchand was only the name lender to Ramlal Jain. Ramlal was the mastermind behind the import and Sohan Chand was his benamidars. No evidence came forward to detach Ramlal from the ownership of the appellant concern as well as the impugned goods. He was answerable to law and was bound to face the consequences thereunder. 18. Appell....
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....chool and Intermediate Education - AIR 2003 SC 4268 has held that no court in this land will allow a person to keep an advantage which he obtained by fraud. 21. When the material evidence established fraud against Revenue white collar crimes committed under absolute secrecy shall not be exonerated from penal consequence of law following Apex Court judgment in the case of K. I. Pavunny v. AC, Cochin - 1997 (90) E.L.T. 241 (S.C.). Various technicalities raised in the course of appeal hearing by appellant did not matter when substance of the matter weighed heavily for determination of the issues in favour of Revenue. 22. An act of fraud on Revenue is always viewed seriously. "Fraud" and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It has been held by Apex Court in the case of Commissioner of Customs, Kandla v. Essar Oil Ltd. - 2004 (172) E.L.T. 433 (S.C.) that by "fraud" is meant an intention to deceive; wheth....
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....her M/s. DHL Logistics Pvt. Ltd., is engaged in the trading of drug i.e., Tranexamic Acid. If so, whether any import of such goods was made in the past by such concern. In the event import was made, whether that was covered by drug licence. That authority may act as may be considered appropriate in accordance with law. 25. It is also surprising to note that all of a sudden M/s.DHL Logistics Pvt Ltd., came to file application to amend the HAWB when it was neither the investor of the goods nor placed any purchase order with the consignor-appellant nor any remittances were made by it to the exporter. Such finding is enough to rule out the claim of the M/s. DHL Logistics Pvt. Ltd., as owner of the imported goods. M/s. DHL Logistics Pvt. Ltd., acted as a console agent for the importer and effort was made to move the goods to FTWZ amending the HAWB and supplier's invoice to hold out M/s. DHL Logistics Pvt. Ltd., as owner thereof. It is left to the Director General of Revenue Intelligence to cause intensive investigation from the FTWZ as to the status of the documents in that zone and the reasons behind the questionable operandi followed by all the three parties. 26. Penalty of conf....