TaxTMI 
TaxTMI 
2018 (11) TMI 624
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.... Duty Demand Penalty M/s Balaji Overseas Rs.1,30,00,377/- 5,00,00,000/- u/s 112/114 AA M/s Kshitiz Sharma Partner NA 10,00,00,000/- u/s 112/114 AA M/s Him Logistics Pvt. Ltd. NA 12.5 Lakhs 3. The appellant filed the Bill of Entry for the goods as in following table: (The table numbers are referred as per the impugned order) Table 2: Details of Goods as per Declaration filed vide B/E No. 3866704 dated 11.01.2016 Container No. Description (A4 Plain Copy Paper 80 GSM White) Name of Total Cartons Packet Weight (Kgs) C & F (US$) GESU4740611 One Pac=500 sheets 2700 13500 27000 21,870 One Carton (5 Pac) 10 Kgs MANU5758717 One Pac=500 sheets One Cartoon (5 Pac) 10 Kgs 2700 13500 27000 21,870 Total 5400 27000 54000 43,740 4. As per the Show Cause Notice it has been alleged that the appellant Balaji Overseas have indulged in evasion of custom duty by resorting to mis declaration of the goods under import. 5. As per the show cause notice it has been alleged that the appellant Balaji Overseas have indulged in evasion of custom duty by resorting to mis declaration....
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.... 27 6 162 9 MHP Glutamine-SR 12 Hour Dietary Supplement (Net Wt 10.6 Oz/300 gms) 26 6 156 10 Muscle Tech Platinum 100% Glutamine Dietary Supplement (Net Wt 10.65 Oz/302 gms) 46 6 276 11 MHP BCAA 10 X Dietary Supplement (Net Wt 10.6 Oz/300 gms) 44 12 528 12 BSN Amino X Dietary Supplement (Net Wt 15.3 Oz/435 gms) 256 6 1536 13 BSN Hyper FX Dietary Supplement (Net Wt 9.84 Oz/279 gms) 100 6 600 14 MHP Xpel Dietary Supplement (80 Capsules) 73 6 438 15 ISO Sensation Protein Supplement (Net Wt 5 lbs/ 2.27 Kgs) 299 2 598 16 Twinlab KAOS Fuel Pre Workout Dietary Supplement 9 Net Wt 14.3 Ozs/405 kgs) 20 12 240 17 Universal Glutamine Dietary Supplement (300 gms) 13 12 156 18 Scivation Xtend BCAAS Dietary Supplement (net Wt 41.4 Oz/1.174 kgs) 12 12 144 19 Isopure Low Carb Protein Powder (Net Wt 3 lbs/1.361 Kgs) 109 6 654 20 Labrada Muscle Mass Gainer (Net wt 192 Oz/12 lbs/5.443 kgs) 110 2 220 Containing Beef Proteins, as follows 21 Muscle Meds Ultra Concentrated Carnivore Beef Aminos 100% Beef Protei....
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.... 2013 & 2014 by M/s Kshitij International. 9. As it appeared to the officers that the appellant Kshitij Sharma was involved in smuggling of food supplements, he was placed under arrest on 15.1.2016 under Section 104 of the Customs Act and was later on granted bail by the CMM, New Delhi vide order dated 15^th March, 2015. 10. The statement of Mr. Sameer Jha F-card holder & proprietor of CHA - M/s KVS Cargo was recorded, who inter alia stated- The KYC documents for the said consignment were handed over to them by Him Logistics Pvt. Ltd. They undertake customs clearance work in respect of the clients recommended by M/s Him Logistics Pvt. Ltd. The statement of Director of M/s Him Logistics Pvt. Ltd, Mr. Ashok Sharma was also recorded, wherein he stated that M/s Balaji Overseas, through its partner Mr. Kshitij Sharma, engaged them for clearance of consignment in question. And as their license was under suspension they requested M/s KVS Cargo-CHA. Further the duty for the said consignment as per the Bill of entry, was paid through them. Statement of Mr. Narender Kumar Sharma, partner of M/s Balaji Overseas, was recorded, who inter alia stated that the work of the partnership firm i....
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....s duty. This Notification prescribes for an abatement of 35 per cent from the RSP for determination of the value for levy of CVD. The value of food supplements as available on the internet, where the country of origin was US, imported at various ports in India, was taken and accordingly the food supplements not containing beef, as per table herein above was valued at Rs. 2,29,03,044/- and the duty payable was determined at Rs. 1,28,73,481/-, as follows: Table 6B: Duty on Food Supplements Not Containing Beef S. No Description Quantity Unit price RSP Assessable Value BCD CVD Edu Cess HSE Cess ACD Total Total Value I ii Iii iv v Vi=iii*iv Vii=o.3*v Vii=iii*v*0. 65*.125 Xi=0.02* (vii+viii) X=0.01*(vii+viii) Xi=0.04*(vii+viii+ix+x)) Xii=vii+vii+ix+x+xi 1 ON Gold Standard 100% 1000 1036.85 3045 1047209 314166 247406.25 11231.45 5615.72 23136.78 601556.2 12. It further appeared that the value of food supplements containing beef cannot be determined under Rule 4 or 5 of the valuation Rules as import of beef in any form and import of products containing beef in any form is prohi....
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....es. Further, why goods be not confiscated, particularly the food supplements containing beef not confiscated absolutely. Further, A-4 plain copy paper having a value of Rs. 5,78,663/- be not confiscated. 14. The show cause notice was adjudicated contest and the proposals confirmed. The food supplements not containing beef and the A4 paper was held liable for confiscation under Section 111 (l) and (m). Further, the food supplement containing beef were held to be liable for absolute confiscation under Section 111(n) of the Customs act. As the food supplements and paper were released provisionally observed that as the goods are not produced for confiscation, under Section 125, these goods are not available for confiscation. though they are liable for confiscation. The bank guarantee furnished was ordered to be appropriated towards redemption fine that could have been imposed on these goods upon confiscation. The duty determined recoverable from the appellants, M/s Balaji Oversees and further appropriation of the amount already paid for Rs. 6,60,790/- was ordered. A penalty of Rs. 10 crore was imposed on the appellant, M/s Balaji Oversees under Section 112 and 114 AA of the Act and ....
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....as personally present on being called by the DRI for examination of the goods on 13 January 2016. Had there been any malafide intention the appellant he would not have presented itself at the time of examination of the goods. 18. The impugned order is also bad on the ground that the order of confiscation is based on the retracted statement of Sh. Khittiz Sharma. The fact of retraction is evident from the order sheet dated 13 January 2012 from the court of the CMM, Patiala House and is further mentioned in the bail order dated 03.05.2016. It is established principle of law that a statement retracted cannot be considered as a confessional statement and cannot be relied upon for drawing adverse inference. 19. That the goods under import not containing beef have been valued by the respondents on the basis of NIDB. The learned counsel states that revenue have valued as per rule 3 and 4 of the Valuation Rules for the reason that NIDB data taken by the Department for similar/identical goods being imported in various ports throughout the country, contains food supplements which are imported from USA. Thus, these are not of Chinese origin as in the case of the appellant. That the good....
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....i) percentage of transportation 5% thus at the gross value determined by the Department at Rs. 2,29,03,044/-, will be as reduced by 40%, the value is worked out at Rs. 1,37,41,826/-. Further on the above value, their duty payable will be Rs. 74,04,305/- (approx.). 21. The ld. Counsel for the appellant further submits that the value of the goods is taken as per data which is showing the value of USA origin goods. Since, the goods imported are of Chinese origin, they will be having some lesser value. Still the ld. Counsel for the appellant is calculating rebate @ 40% on the value of Rs. 2,29,03,044/- as per Rule 7 of Customs Valuation Rules, 2007. The value calculated is as follows:- "THE VALUE IS COMPUTED AS FOLLOWS: The value of the goods as per the department is Rs. 2,29,03,044/- which is taken from the internet, which is a fact admitted by the department in the subject show cause notice and as evident from the judgments cited above the value of the goods cannot be taken under Rule 3 and Rule 4 of the Customs Valuation Rules, 2007 and the necessary deductions as per Rule 7 of the Customs Valuation Rules, 2007 will be as follows: i. 30% of the Customs Duty ....
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.... appropriation of bank guarantee furnished, for the purpose of provisional release, is bad as no redemption fine was imposed. Thus order to recover redemption fine from the bank guarantee is misplaced and fit to be set-aside. 27. Accordingly the learned counsel prays for allowing the appeal with consequential benefits. 28. The learned counsel for the M/s Him Logistics Private Limited, appellant urges that the penalty of Rs. 12.5 lakhs imposed upon them is bad and fit to be set-aside. It has been alleged that, Him logistics have actively and knowingly aided and abetted M/s Balaji Oversees and its partner, and thus they were hand in glove with them in the attempt to smuggle undeclared as well as prohibited goods. M/s Him logistics paid the customs duty for the said consignment on behalf of the importer - M/s Balaji oversees. They also handed over the customs KYC documents to M/s KVS Cargo - custom broker, in the aforementioned Bill of entry. That M/s KVS cargo filed the Bill of entry. The fact of handing over of KYC documents and other documents have been stated by the proprietor of M/s KVS cargo, as the said documents were delivered to them by Him logistics. Thus, the appellan....
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....and not acceptable. Had there been a genuine mistake, the supplier/exporter would have informed the appellant importer well in advance as transit time from China to India is minimum of 20 days. The bill of lading is dated 23 December 2015 and the container was examined by the Customs on 13^th January 2016. Further, such plea of erroneous supply was neither made at the time of examination of the goods nor in the statement of Shri Kshitiz Sharma recorded on 13^th and 14 January 2016. This plea was taken for the 1^st time after about 2 months, based on the letters of the exporter dated 6^th March 2016 and 9 March 2016. If the mistake was genuine, the supplier would have come to know about the blunder much earlier and later or sooner after the shipping. Further, the statement of the foreign supplier is not reliable as he may be hand in glove with the appellants. Further it is established law that in case of breach of a civil obligation, attracting penalty, existence of element of mens rea is not required for imposition of punishment/penalty. 31. So far the contention of the appellant that the statement of Kshitiz Sharma has got no evidentiary value in view of the retraction made, it....