TaxTMI 
TaxTMI 
2017 (3) TMI 492
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....hat, in the bill of entry, the description of the imported goods was declared as "Baby Diapers", without mentioning any brand name. On preliminary examination of the goods, it was found that the imported baby diapers were of 'Pamper' brand and not unbranded, as declared in the Bill of Entry. Therefore, it appears that M/s. DMP Enterprise had imported 'Pamper' brand baby diapers and thereby mis-declared the same in the Bill of Entry as "Baby Diapers". In the course of inspection of the container by the Customs Officers on 11th July 2007, it was found that in the front side of the containers, boxes containing "Pamper" brand diapers were stacked and behind it, there were other boxes that were found to contain cosmetics and toiletry preparations ie., perfumes, deodorants, soaps, shampoos, talcum powder, hair gel and other goods having origin from France, United Kingdom, Thailand, Germany, USA, etc. After investigation, a show cause notice dated 1st January 2008 was issued under Sections 28 and 124 of the Customs Act, 1962 upon M/s. DMP Enterprise, Gandhidham [Kutch]; M/s. B.S Trading Company LLC, Dubai-UAE; Shri Bipin J Shah, Gandhidham and Shri Jayesh S Shah, Mumbai. ....
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....other places. Accordingly, searches were carried out and certain incriminating documents were recovered. Statement of Shri Jayesh S Shah was recorded on 17th July 2007 under Section 108 of the Customs Act, wherein he, inter alia, has stated that he is an employee with M/s. H.K Dave, a CHA Company; that he had cleared two consignments of "Baby Diapers" on behalf of M/s. H.K Dave; that he and Shri Jitubhai had planned the import of branded diapers under the garb of unbranded baby diapers at Mundra; that he introduced Shri Jitubhai to his brother-in-law Shri Bipin J Shah, who is the proprietor of M/s. DMP Enterprise; that he did not arrange for any warehousing of the goods of M/s. DMP Enterprise, as the same was being looked after by Shri Jitubhai. However, the said Shri Jayesh S Shah vide his letter dated 23rd July 2007 addressed to the Commissioner had retracted his statement dated 17th July 2007 recorded by the officers of R&I, Mumbai submitting that his statement was recorded by force and coercion. He has stated that he was only a Dock Clerk, working for M/s. H.K Dave, a CHA firm at Mumbai; that his brother-in-law Shri Bipin Shah, who was proprietor of M/s DMP Enterprise requested....
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....that of 'Pamper' Brand diapers as Rs. 9,59,030/- in terms of Rule 7 of the Customs Valuation Rules, 2007; [c] the seized cosmetics should not be classified appropriately under respective subheadings, as per the Customs Tariff Act, 1975; [d] duty amounting to Rs. 17,51,707/- as detailed in Annexure to the SCN should not be demanded and recovered from them under Section 28 (1) of the Customs Act, 1962 on the goods enumerated in (b) above; and [e] penalty should not be imposed upon them under Section 112 and/or 114 of the Customs Act, 1962. 2.7 Whereas, Shri Jayesh S Shah, Shri Bipin J Shah and M/s. B.S Trading Company LLC, Dubai were called upon to show cause as to why a penalty should not be imposed upon them under Section 112 of the Customs Act, 1962. 2.8 That, the aforesaid show cause notice came to be adjudicated by the Commissioner of Customs. 3. After giving fullest opportunity to all the concerned, against whom the show cause notice was issued and the statements recorded in the course of investigation, and on appreciation of evidence and after affording personal hearing to the concerned persons, the Adjudicating Authority confirmed the duty liability. That, on....
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.... the Tribunal has committed substantial error of law by holding the appropriation of the custom duty paid by real importer in the name of the appellant to hold that the appellant is the importer of the goods ? [C] Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law by not dealing with the various contentions in the appeal of the appellant ? [D] Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law in failing to notice how the impugned order in original passed by the respondent Commissioner omitted the material uncontroverted allegations against the real importer as contained in the show cause notice to impose a penalty on the appellant and that too, higher than the real importer ? 9. Shri Paresh V Sheth, learned advocate has appeared on behalf of Shri Jayesh S Shah - appellant of Tax Appeal No. 239 of 2016, and Shri S.S Iyer, learned advocate has appeared on behalf of Shri Bipin J Shah - appellant of Tax Appeal No. 817 of 2016. Shri Sudhir Mehta, learned advocate has appeared for and on behalf of the respondent- Department. 9.1 Shri P.V Sheth, learned advocate appearing on be....
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.... advocate Shri Sheth appearing on behalf of appellant-Shri Jayesh Shah that as such neither the Adjudicating Authority nor the learned Tribunal could have relied upon the statement of Shri Jayesh Shah recorded on 17th July 2007 under Section 108 of the Customs Act, as subsequently, he retracted from the said statement. It is submitted that even the statement of Shri Bipin Shah recorded under Section 108 of the Act could not have been relied upon, as no opportunity was given to his client to cross examine the said Shri Bipin J Shah. 9.5 Making above submissions, it is requested to allow the Tax Appeal preferred by Shri Jayesh S Shah and to quash and set-aside the penalty of Rs. 5 lacs imposed upon him. 10. Shri S.S Iyer, learned advocate appearing on behalf of Shri Bipin J Shah-appellant of Tax Appeal No. 817 of 2016 has taken us to the findings recorded by the Adjudicating Authority in OIO. It is vehemently submitted that in fact Shri Jayesh Shah, who is relativebrother- in-law, was the kingpin and was the master mind and everything was done by him, however, Shri Bipin J Shah, proprietor of M/s. DMP Enterprise, Gandhidham only permitted to use the name of the firm in the import. ....
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....s well as learned Tribunal holding that Shri Jayesh Shah [brother-in-law of Shri Bipin S Shah] was the kingpin and master mind of import in question. On appreciation of evidence and considering the material on record and while imposing the penalty upon Shri Jayesh S Shah and Bipin J Shah, the Adjudicating Authority in para 9 has observed and held as under :- "9. I shall now deal with point drawn in para 7.3 (c) above relating to penal liability of the noticees. 9.1 In this case, the liability of goods imported in container No. OOLU 8272830 to confiscation under the provisions of Section 111 (d), (f), (l) and (m) of Customs Act, 1962 arose primarily on account of mis-declaration of goods in bill of entry No. 114575 dated 12.6.2007 that was filed by M/s. DMP Enterprise. In other words, the primary responsibility of rendering goods liable to confiscation by making an untrue declaration in the bill of entry undeniably rest with the said importer. Moreover, it is seen from the statement dated 5.7.2007 [that was recorded prior to examination conducted on 11.7.207] of Shri Bipin Shah, Proprietor of M/s. DMP Enterprise that he was aware of the fact that goods that were [mis] declared ....
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....other-in-law Shri Bipin Shah. When this event of introduction of Shri Jeetu with Shri Bipin Shah by Shri Jayesh Shah is read in conjunction with subsequent transfers of money by Shri Jayesh Shah to the account of persons engaged in clearance and transportation of goods undisputedly imported by Shri Bipin Shah, the involvement of Shri Jayesh Shah clearly surfaces. Although Shri Jayesh Shah has sought to retract his statement dated 17.7.2007 vide his letters dated 23.7.2007 and 4.8.2007 followed by an affidavit dated 13.8.2007, it is observed that there is nothing in the retraction as well as affidavit to negate the fact of payment made by Shri Jayesh Shah to the clearing agent and transporter. Further, Hon. Supreme Court in case of Surjeet Singh Chhabra v. Union of India, 1997 (89) ELT 646 [SC] has held that Customs officials are not Police officers and confession, though retracted, is an admission and binds the petitioner. It is further seen that Shri Jayesh Shah has requested for cross examination of various persons. However, in this case, cross examination is not required because evidences contained in his own statements as well as details of his own bank account are being con....
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....foresaid cannot be said to be either per verse and or contrary to the evidence on record. Such findings on fact are not required to be interfered by this Court in exercise of appellate jurisdiction [Second Appeal]. 13.2 So far as contention on behalf of appellant-Shri Jayesh Shah that his statement dated 17th July 2007 could not have been relied upon, as he subsequently retracted it and that the statement of Shri Bipin Shah also cannot be relied upon, as he was not permitted to cross examine him is concerned, it is required to be noted that after making the statement under Section 108 of the Act on 17th July 2007, the Commissioner of Customs, Kandla vide communication dated 31st July 2007 did not accept the case of Shri Jayesh Shah that his earlier statement dated 17th July 2007 was recorded under coercion or force. Apart from the above, the findings recorded by the Adjudicating Authority are based on other materials on record viz., bank accounts and considering other independent evidence. Under the circumstances, it cannot be said that the impugned orders are vitiated. 14. Now so far as contention on behalf of Shri Jayesh Shah that he did not file Bill of Entry, and therefore, h....