TaxTMI 
TaxTMI 
2019 (1) TMI 1123
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....on Rules 2007. 32. The said consignment having MAWB No 16041242585 and covered by Bill of Entry No 5710820 dated 23.03.2018 is confiscated under Section 111(d), 111(i), 111(l), 111(m) of the Customs Act, 1962; however, I allow the importer to redeem the goods as envisaged under Section 125 of the Customs Act for the exclusive purpose of export, on payment of fine amounting to Rs. 15,00,000/- (Rupees Fifteen Lakhs only) The option of redemption for export shall be available for a period of 30 days from the date of receipt of this order by the importer/ director of the importer/ concerned customs broker. 33. I impose penalty of Rs. 7,50,000/- (Rupees Seven Lakhs Fifty Thousand only) under section 112 of the Customs Act, 1962 upon the importer M/s Matrix Info Systems Private Limited. 34. I impose penalty of Rs. 7,50,000/- (Rupees Seven Lakhs Fifty Thousand only) under section 112 of the Customs Act, 1962 upon Shri Sunil Jain, Director of M/s Matrix Info Systems Private Limited. 35. This order is issued without prejudice to any other action that may be taken against the importer or any other person under the provision of Customs Act, 1962 or any other law for the time being....
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....uation Rules, 2007; c) The penalty under Section 112 of the Customs Act, 1962 should not be imposed upon M/s Matrix Info Systems Private Limited; d) The penalty under Section 112 of the Customs Act, 1962 should not be imposed upon Shri Sunil Jain, Director of M/s Matrix Info Systems Private Limited." 2.6 After taking into consideration the submissions made by the appellant company and its Director in their written submissions dated 27.07.2018 and during the course of personal hearing on 2.08.2018, Commissioner adjudicated the show cause notice as pr the order referred in para 1 supra. 2.7 Aggrieved appellant company and its Director have filed these appeals before tribunal. 3.1 In their appeal appellants have assailed the order of Commissioner on following grounds i. Undisputed fact that Bill of entry was filed only on the basis of documentary evidence. Importer would come to know about a wrong shipment only after the goods are examined or when informed by the supplier. In the present case where the goods have been wrongly sent by the supplier it would be wholly unjustified to attribute misdeclaration on them. ii. The request for re-export is not an afterthough....
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....ustified. vii. The manner in which the opinion and examination of goods have been undertaken by the chartered engineer too is not in accordance with the prescribed procedure. Commissioner has also not allowed the cross examination of the chartered engineer. viii. He also submits the Copy of invoice and BE No 5559872 dated 13.03.2018, 5414769 dated 02.03.2018, 5591352 dated 15.03.2018, 6202220 dated 23.04.2018 and 659794 dated 30.05.2018 to establish their bonafides. ix. Since they have acted bonafidely, the charge of mis-declaration for confiscation of the goods and imposition of penalty on them cannot be sustained as has been held by various authorities referred in their appeal. x. Appeals of the both appellant company and its Director should be allowed. 4.3 Arguing for revenue learned Authorized representative submitted that - i. The fact that the goods have been mis-declared on the Bill of Entry is evident from the examination report prepared under the panchnama dated 26.03.2018. ii. It was only after the detention of the goods on 24.03.2018, that the appellants have claimed that the goods have been mis-sent by the shipper. iii. Appellants had sought the ....
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....shippers invoice and the Bill of Entry are listed and in table 2, the goods as found during the examination on 26.03.2018 are listed. Table 1: Goods as declared on B/E and Invoice No DGTLLC12022018 S No Description Number Unit Price Total 1 8 GB DDR3 Kingston Memory Module 156 7.00 1092.00 2 4 GB DDR3 Kingston Memory Module 44 4.00 176.00 3 2GB DDR3 Kingston Memory Module 4730 3.00 14190.00 15458.00 Table 2: Goods as actual found on 100% examination on 26.03.2018 S No CTN No Description Brand Number 1 KB-3 Hyper-X Fury 8 GB DDR4 2400 Mhz Kingston 50 2(a) KL-7 Processor CPU I3-2100 Intel 191 2(b) KL-7 Processor CPU I3-2120 Intel 192 2(c) KL-7 Processor CPU I3-2130 Intel 10 2(d) KL-7 Processor CPU I3-3220 Intel 201 2(e) KL-7 Processor CPU I3-3225 Intel 3 2(f) KL-7 Processor CPU I3-3245 Intel 1 2(g) KL-7 Processor CPU I3-3240 Intel 19 2(h) KL-7 Processor CPU I3-4160T Intel 300 2(i) KL-7 Processor CPU I3-2100S ....
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....cation and mistakes of one employee of the vendor, the vendor has added some more cartons to the shipment which were meant for vendor's Dubai based client; • That they ordered "Memory Modules" and to that effect, he has already submitted copy of purchase order dated 12.02.2018; • That he came to know about the wrong shipment supplied by M/s. Decimal General Trading LLC on 25.03.2018 via E-mail; • That he does not sign on the declaration filed with the Bill of Entry; that on his behalf, CHA sign the declaration; • That the entire shipment does not belong to him and the supplier has sent wrong shipment; • That neither he nor his firm has ever been indicted in any Customs related offences and they have never been charge-sheeted nor given any show cause notice till date; and • That the supplier vide email dated 25.03.2018 has requested to re-export the shipment back to Hong Kong and they also wish the same. 5.5 From the above statement it can be reasonably concluded that the goods in the consignment under importation are not the goods as declared by the appellants. Along with their letter dated 28.03.2018 ....
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....to them by mistake; and • That while unpacking/checking of shipment at the Customs warehouse by the CIU team in the presence of their CHA representative, the slip fell off from the packing; that this can be verified on the CCTV cameras thereon. Commissioner has in para 12.3 of the order recorded "the contention of the importer that the HAWB bearing number 1008458/hka918030115 was pasted on the goods and it fell off during the course of examination of the impugned goods, did not appear sustainable as the said paper was not found pasted on the pallet containing impugned goods at the time of examination and the same is also not evidenced in the panchnama dated 26.03.2018" 5.7 The submissions made by the appellant do not inspire confidence as in the present case the date of invoice is 12.02.2018 and MAWB is 6.02.2018, whereas as per the appellants the date of purchase order is 12.02.2018. It is the submission of the appellants that "Master Air Waybill is issued by the carrier airline after the receipt of goods on the basis of declaration made by the shipper of the goods or the forwarder of the goods on behalf of shipper." There seem to be no explanation about the fac....
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....olicy 2015-20 (Para 2.31 read with Notification No 35 (RE-2012)/2009-14 dated 28.02.2013), without proper authorization from Director General Foreign Trade. 5.9 On the basis of contemporaneous import available in NIDB data, the value of the goods imported was determined in terms of Rule 5 and 9 of the Customs Valuation (Determination of Price of Imported Goods) Rules, 2007. On the basis of such determination it was found that against the declared value of consignment as Rs. 11,89,997/- the correct value was Rs. 1,07,42,643/-. 5.10 Accordingly the charge of mis declaration of the consignment in terms of description, quantity and value is well founded. In case of Kumar Overseas [1997 (95) ELT 231 (T-Del)] tribunal has upheld the charge of misdeclaration and violation of ITC Policy- "2. Appellant is a trader at Ludhiana. Three containers described as containing Heavy Melting Scrap No. 1 of Japanese origin reached Bombay Port on 27-9-1995 for onward transmission to Jalandhar. On permission obtained by the appellant from Bombay Custom House goods were allowed to be transported under Bond to Jalandhar. On 25-10-1995 Department received information that the consignment consisted ....
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.... the order to the extent it relates to confiscation of the goods in regard to ITC angle and mis-description of goods and imposition of penalty but set aside confiscation on account of mis-declaration of value, quantification of redemption fine and quantification of penalty. The case is remanded to the jurisdictional adjudicating authority for deciding afresh the correct assessable value and quantifying redemption fine and penalty. If the Department desires to rely on further documents, copies of the same may be furnished to the appellant who will also be at liberty to produce documents in regard to controversy requiring decision." 5.11 In case of Monica Enterprises [2002 (149) ELT 1264 (T-Del)] it has been held as follows: "27.In paragraph 75 of the impugned order, the Collector has discussed the point regarding shipment of excess goods than those declared in the bills of entry. The appellants' plea before Collector was that the fact of excess shipment came to notice of the foreign supplier based on the auditor's scrutiny. Collector has not accepted this plea. He has observed that the Directorate of Revenue Intelligence started enquiry on 18-3-1986 and Shri Jatinder Uppal cam....
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.... may, in the case of any goods, the importation or exportation whereof if prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods [or, where such owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit : Provided that, without prejudice to the provisions of the proviso to sub-section (2) of section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon. Where any fine in (2) lieu of confiscation of goods is imposed under sub-section (1) of the owner of such goods or the person referred to in sub-section (1) shall, in addition, be liable to any duty and charges payable in respect of such goods." 24.Mere non-imposition of penalty/fine, which is the mandate under Section 125 of the CA in case of confiscated goods, cannot automatically result in letting the petitioner go scot-free. The ACC (Imports) had no discretion not to impose fine as the provision clearly provides that "officers.....
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....r mistakenly added few more cartons to their shipment which was originally meant for vendor's Dubai based client. This appeared to be self-contradiction of the importer's earlier stand. Thus, the contention and submission of the importer appeared to be afterthought and a self knitted story to cover up the lapse/omission on their part. In view of the above the impugned goods valued at Rs. 1,07,42,643/- appeared to be liable to confiscation under Section 111(d), 111(i), 111(l), 111(m) of the Customs Act, 1962 and consequently the importer M/s. Matrix Info Systems Pvt. Ltd. appeared to be liable for penalty under Section 112 of Customs Act, 1962. 14.3 From the foregoing, it is appeared Shri Sunil Jain fabricated the shipper's invoice/purchase order so as to mislead the departmental investigation as the said documents cannot be of the date later to the date of MAWB. MAWB is issued on the basis of HAWB which is a receipt given to the shipper as an acknowledgment of having received the goods from the shipper/consignee. In such circumstances, agreement of sale between the importer and shipper must have been executed before the date of MAWB i.e. before 06.02.2018. Thus the documents viz....