TaxTMI 
TaxTMI 
TaxTMI 
2018 (1) TMI 1460
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....ector General, DRI, Chennai Zonal Unit answerable to the Commissioner of Customs, Tuticorin. Shri Hiren Bhagavanji Kalariya, Director of M/s. Shiva Biochem, (hereinafter also referred to as co-applicant-I); (ii) Shri Vipul Laljibhai Bavarva, Director of M/s. Shiva Biochem, (hereinafter also referred to as co-applications-II) and (iii) Shri Narendra Hirjibhai Adroja, Proprietor of M/s. P.N. Enterprise, (hereinafter referred to also as "the co-applicant-III") have also filed their applications for settlement arising out of the instant SCN. The applications were allotted with numbers S.A. Cus/20-24/2017-SC and were allowed to be proceeded with by the Bench on 20-4-2017. 1.3 The SCN demands inter alia differential Customs duty to the tune of Rs. 1,58,67,518/- (Rs. 1,42,38,418/- pertaining to M/s. Shiva Biochem and Rs. 16,29,100/- pertaining to M/s. P.N. Enterprise) and applicable interest thereon. It was also proposed in the SCN to finalise the 4 provisionally assessed Bills of Entry under Section 18 of the Customs Act, 1962, as listed in the Annexure VI (including two live Bills of Entry) to the instant SCN. There is also a proposal in the SCN for appropriation of an amount of R....
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....lared description, representative samples were taken for testing under mahazar proceedings dated 8-6-2016. 1.9 The office premises of M/s. Amit Cargo International, Tuticorin, who were handling the Customs clearances on behalf of the applicant-l, was searched on 9-6-2016 in connection with the imports made by the applicant-1. The proprietor of M/s. Amit Cargo International, Shri Ameet K. Dedhia revealed that the entire cargo imported by M/s. Shiva Biochem were being sold in 50 kg. bags to one M/s. GBKAL Overseas Pvt. Ltd., Gujarat and the dispatch of the consignments were taken care by him. During the search operation thee-mail correspondence, retrieved from him indicated that the imported goods purchased by M/s. GBKAL Overseas Pvt. Ltd. were animal feed supplement and not Organic Manure Composite Fertilizer, as declared by M/s. Shiva Biochem, in the customs document for import. During the search, the laptop of Shri Ameet K. Dedhia containing several e-mail correspondence along with other incriminating documents were seized under the Customs Act, 1962 under mahazar proceedings dated 9-6-2016. 1.10 Scrutiny of the documents and in pursuance of the information revealed th....
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....joined M/s. GBKAL Overseas (P) Ltd., as a director and he was taking care of documentation and finance of M/s. GBKAL Overseas (P) Ltd., that towards end of 2014, he started the company M/s. P.N. Enterprise as a proprietary concern in his name, as suggested by his brother-in-law, Shri Hiren Kalaria for importing animal feed supplement and started importing animal feed supplement; that during Aug, 2015 his brother-in-law Shri Hiren Kalariya suggested that they could declare the imported 'animal feed supplement' as 'Organic Manure - Composite Fertilizer' which attracts lesser duty; that since, the supplier company was in the name of his co-brother (Shri Vipul Bavarva), Shri Hiran Kalariya arranged documents for the import of animal feed supplement in the name of 'Organic manure - Composite Fertilizer'; that they had imported three consignments of animal feed supplement by declaring the same as 'Organic Manure - Composite Fertilizer' in the name of M/s. P.N. Enterprise and at the end of Oct, 2015, M/s. P.N. Enterprise, which stood in his name, was closed and M/s. Shiva Biochem was started as a partnership firm, with his brother-in-law; that Shri Hiren Kalaria and his co-brother Shri Vi....
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....uty. His brother-in-law, Shri Vipul Bavarava started a company M/s. Filaha International, Dubai; during the course of time he came to know that if the product was declared as "Organic Manure-Composite Fertilizer" under Chapter 3101 at the time of import, the rate of import duty was much less; that since they were raising invoices from his brother-in-laws company viz., M/s. Filaha International, Dubai, he arranged for invoices mentioning the commodity as "Organic Manure - Composite Fertilizer" though it was actually "Protein meal animal feed supplement" supplied by M/s. CAGEMAX and filed the Bill of Entry with Customs under Chapter Heading 3101 and paid lesser duty; that likewise, he had imported two more consignments in the same method from Netherland, in the name of M/s. P.N. Enterprise and evaded customs duty; that due to some financial problems in the company, Shri Narendra, Proprietor, had closed down the firm M/s. P.N. Enterprise; that after closure of the company M/s. P.N. Enterprise, he started M/s. Shiva Biochem (IEC No. 2415005983), which is a partnership firm with Shri Ameet K. Bagthalia as another partner for the transaction of "Protein meal animal feed supplement" in th....
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....d supplement" and not "Organic Manure Composite Fertilizer" as declared in the Bills of Entry. He admitted that it was a mistake on their part to have misdeclared the imported goods to avoid payment of higher rate of duty applicable to the product "Protein meal animal feed supplement" imported by them. He assured to pay the differential duty payable for the live consignments as well as the past consignments imported in the name of M/s. P.N. Enterprise and M/s. Shiva Biochem, Rajkot, Gujarat and also paid an amount of Rs. 1 crore as part of differential duty payment on that day itself. 1.17 Statement was recorded from Shri Vipul Bavarva, Director, M/s. GBKAL Overseas, Rajkot and Director in M/s. Shiva Biochem, Rajkot wherein he inter alia stated that he admitted their mistake to have misdeclared the imported goods to avoid payment of higher rate of duty applicable to the product "Protein meal animal feed supplement" imported by them. 1.18 The evidences indicated that M/s. Shiva Biochem had misdeclared the imported goods as "Organic Manure - Composite Fertilizer", whereas the actual imported goods were "Protein meal animal feed supplement", in order to evade payment of ap....
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....a payment of Rs. 16,29,100/- in respect of their live consignments as well as past clearances on various occasions. 1.23 Meanwhile the representative sample drawn from the consignment vide mahazar dated 8-6-2016, were sent to the Quarantine Officer (SR), Animal Quarantine and Certificate Services (AQCS) (SR), Chennai for testing. The quarantine officer (SR) stated vide letter dated 22-7-2016 that the samples forwarded could not be tested as the consignments were not accompanied with Sanitary Import Permit (SIP). The QO further stated that consignments of protein meal animal feed supplement imported vide Bill of Entry No. 5420683, dated 27-5-2016 and 5490477, dated 2-6-2016 imported by the M/s. Shiva Biochem contained meat and bone meal which came under the category of livestock products and categorized the same as high risk commodity. Moreover, the import of the said product could be done only after obtaining a sanitary import permit in advance from the Ministry of Agriculture and Farmer's Welfare, New Delhi and Tuticorin Port was not authorized for import of livestock products. The AQCS had also requested the Department to take immediate action regarding deportation/destruct....
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....the exemption under Sl. No. 106 of Notification No. 12/2012-Cus., dated 17-3-2012 as claimed by the applicant. 1.28 Investigations concluded that : * M/s. Reha International, Dubai and the consigner company M/s. Rehakal owned by Shri Hiren Bhagavanji Kalariya; * M/s. Filaha International, Dubai was owned by Shri Vipul Lalji Bhai Bavarva; * Both Shri Hiren Bhagvanji Kalaria and Shri Vipul Lalji Bhai Bavarva are the Directors in M/s. Shiva Biochem, which indicated that the respective suppliers of M/s. Shiva Biochem i.e. M/s. JHK Pol Sp. Zoo, and previously M/s. Rehakal International and M/s. Filaha International Ltd., Dubai are all companies related to M/s. Shiva Biochem; * M/s. Reha International, M/s. Filaha International, M/s. Rehaka International, Dubai and JHK POL Sp Zoo, Poland were the related companies of M/s. P.N. Enterprise and M/s. Shiva Biochem and the same was suppressed to Customs; * M/s. Jasta, Poland and M/s. CAGEMAX, Netherlands were the actual suppliers of "Protein Meal Animal Feed Supplement' whereas the invoices were raised from related companies of the importers viz., M/s. Filaha International Ltd., Dubai and M/s. Rehakal International SP Z.O.O, P....
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....ricated invoice with misdeclared description, thereby evading duty to the tune of Rs. 1.96 crores; * Shri Vipul Lalji Bhai Bhavara, brother-in-law of Shri Hiren Bhagvanji Kalaria was the director of M/s. Shiva Biochem, Rajkot along with Shri Hiren Kalaria. He was also the director in M/s. GBKAL Overseas Pvt. Ltd., Rajkot and taking care of domestic purchase. He was also the owner of M/s. Filaha International Dubai and had specifically admitted to having agreed to import animal feed supplement by misdeclaring the same as "Organic Fertilizer", in order to evade customs duty; * Shri Narendra Hirjibhai Adroja was the proprietor of M/s. P.N. Enterprise, Morbi and Director in M/s. GBKAL Overseas P. Ltd., Rajkot and taking care of finance and documentation. As proprietor of M/s. P.N. Enterprise, Morbi, he had actively involved in the unlawful activity with the guidance of Shri Hiren Bhagvanji Kalaria and misdeclared the description of the imported goods in three bills of entry with fabricated invoices and thereby evaded payment of appropriate customs duty. Also M/s. P.N. Enterprise had cleared their earlier five consignments with actual description through Tuticorin Port without being....
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....rential duty of Rs. 1,42,38,418/- on the goods imported vide 12 Bills of Entry as listed in Annexure IIIA should not be demanded under Section 28(4) of the Customs Act, 1962; vii. the interest on the differential duty demanded in para (vi) above should not be charged and demanded under Section 28AA of the Customs Act, 1962; viii. an amount of Rs. 2,38,25,532/- paid during investigation in respect of the applicant should not be appropriated towards the duty and other liabilities against them; ix. penalty and interest thereon should not be imposed on the applicant under [Section] 114A of the Customs Act, 1962 for suppressing the actual value/documents and thereby evading customs duty, in respect of Bills of Entry listed in Annexures-IIIA; x. penalty should not be imposed on the applicant under Section 112 of the Customs Act, 1962 for suppressing the actual description, value and documents with intention to evade Customs duty and rendering the subject goods liable to confiscation, in respect of the Bills of Entry listed at Annexures IIIB and IIIC; xi. penalty should not be i....
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.... and Fisheries), New Delhi and the Foreign Trade (Development and Regulation) Act; vi. the interest on the differential duty demanded in para (iv) above should not be charged and demanded under Section 28AA of the Customs Act, 1962 as applicable during their material period of currency; vii. an amount of Rs. 16,29,100/- paid during investigation should not be appropriated towards the duty liability against them; viii. penalty should not be imposed on the applicant under Section 112 of the Customs Act, 1962 for suppressing the actual description, value/documents and thereby evading customs duty, for not obtaining valid SIP from Ministry of Agriculture and Farmers Welfare prior to import which was mandatory for import, for suppressing the facts to Customs and thereby for having rendered the said goods covered by Bills of Entry as per Annexure IIA liable for confiscation; ix. penalty and interest thereon should not be imposed under Section 114A of the Customs Act, 1962 in respect of goods imported vide Bills of Entry specified in Annexure IIB/Annexure V. x. penalty should no....
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....onsignment was not accompanied with valid SIP, the applicant submitted that as the goods have been proposed for confiscation and imposition of redemption fine, it was imperative that the goods might not be destroyed and the seized goods might be ordered for re-exportation as proposed in the SCN; * The total amount paid at the time of import and during investigation came to Rs. 2,74,85,637/- and the amount might be adjusted/appropriated against the duty liability of Rs. 1,21,05,476/- and interest liability of Rs. 4,54,620/-. The amount of Rs. 2,38,25,532/- mentioned in para 28(x) of the SCN is not correct; * The provisionally assessed Bills of Entry might be ordered for finalization assessing the duty of the goods @ 20.6% ad valorem; * The applicant had made an excess payment of Rs. 1,53,80,160/-. 2.2 The applicant in their application has further requested for adjusting the paid amount of Rs. 2,74,85,637/- against its admitted duty liability of Rs. 1,21,05,476/- and also the interest liability of Rs. 4,54,620/- and the rest of amount of Rs. 1,49,25,540/- for refund. The applicant has further requested for immunity from prosecution, fine and penalty as proposed in the SC....
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....ty. 4.2 Shri Vipul Laljibhai Bavarva, partner of M/s. Shiva Biochem in his application dated 3-4-2017 has sought for immunity from prosecution and penalty. Averments of co-applicants of M/s. P.N. Enterprise : 4.3 Shri Narendra Hirjibhai Adroja, Proprietor of M/s. P.N. Enterprise in his application dated 3-4-2017 has sought for immunity from prosecution and penalty proposed in the SCN. Averment of Shri Ameet K. Dedhia, proprietor of M/s. Amit Cargo International, Tuticorin - Co-applicant of M/s. Shiva Biochem and M/s. P.N. Enterprise : 4.4 This co-applicant was functioning as CHA for both the applicant firms. Shri Ameet K. Dedhia had averred that he as a CHA was not required to submit any Bill of Entry and hence the details of information which has not been correctly declared in the Bill of Entry was not applicable to them. Duty has not been demanded from them in the SCN and hence the question of either accepting the duty liability or the manner in which it has been arrived at was also not applicable to them. He seeks immunity from penalty and prosecution from these cases. Admissibility of the applications of M/s. Shiva Biochem and M/s. P.N. Enterprise and their....
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..... * The strategy of import of protein meal animal feed supplement handled by Shri Hiren Bhagvanji Kalaria, initially in the name of M/s. P.N. Enterprise clearly show his awareness in actual classification during import period; subsequently, due to higher rate of duty, knowingly, he had misdeclared the goods as 'organic manure" to evade from payment of appropriate duty clearly shows that he was well aware of the fact that the actual description attracts higher duty does not have any exemption. * It is imperative to note that the description mentioned in the bills of entry furnished by the applicant as their defence are mostly additive and premixes viz., minerals, acidifier vitamins and hence the notification benefits has been extended for those Bills of Entry. * The persons responsible for the affairs of M/s. Shiva Biochem had knowingly suppressed the true nature of the subject goods with the intention to evade Customs duty, and also knowingly furnished false documents to the Customs authorities. * Re-exportation/destruction of the impugned goods imported vide BE No. 5420683/27-5-2016 and Bill of Entry No. 5490477/2-6-2016, the jurisdictional Commissioner submitted that if t....
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....o. 12/2012-Customs only for feed additive or pre-mixes The CTH 2309 90 10 is a general heading and the duty benefit had not been extended for all the goods specified under the above CTH; The description mentioned in the bills of entry furnished by the applicant were mostly additive and premixes viz., minerals, acidifiers vitamins and hence the notification benefits had been extended for those Bills of entry; they are not benefit of notification and hence the question of refund does not arise the offence committed by the applicant was deliberate and hence they deserve penal action. 6.3 With regard to the application submitted by the co-applicants Shri Hiren Bhagvanji Kalaria, Ex-partner Shiva Biochem and Shri Vipul Laljibhai Bavarva, the jurisdictional Commissioner has reported that : * Shri Hiren Bhagavanji Kalaria, the kingpin behind the imports made by both main applicants viz. M/s. P.N. Enterprise, Morbi and M/s. Shiva Biochem, Rajkot had devised a plan with an intention to evade payment of appropriate customs duty; * As per the plan, he had floated several companies abroad with the assistance of his brothers-in-law for raising invoices wherein the goods we....
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....ht be pleased to be dismissed by the Settlement Commission. 6.6 The payment particulars in respect of M/s. Shiva Biochem is furnished below : 1. The amount of customs duty demanded, appropriation proposed, if any Rs. 1,42,38,418/- 2. The amount of customs duty admitted Rs. 1,42,38,418/ 3. The amount of customs duty paid Rs. 2.35,65,839/- 4. Amount of interest payable Rs. 7,85,674/- 5. Amount of interest paid Nil 6. The reason for difference in duty demanded and duty paid/accepted by the applicant, if any The amount paid by the applicant voluntarily in piecemeal 7. Mention if there is any short payment or excess payment made by the applicant Excess amount paid : Rs. 85,41,747/- 8. Details of BG/Bond executed Nil 9. Whether the applicant is eligible for any refund on the subject issue, if so amount of refund? Total diff duty + interest payable : Rs. 1,50,24,092/ - Total amount paid - Rs. 2,35,65,839/- Excess amount paid - Rs. 85,41,747/- 6.7 The payment particulars in respect of M/s. P.N. Enterprise, Morbi, is furnished below 1. The amount of customs duty demanded, appropriation proposed, if any Rs. 16,29,100/- 2. The amount of customs duty....
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....rk/conclusion which has been relied upon by the department to deny a genuine benefit. * To substantiate their claim, the applicant had submitted copies of about 10 Bills of Entry wherein the benefits of exemption have been granted by the Customs Department even though the term "additive or premixes" was not mentioned in the description of goods. * The applicant has requested the Hon'ble Bench to settle the case by extending benefit of Sl. No. 106 of the Notification No. 12/2012-Cus., dated 17-3-2012. * Regarding the proposal for confiscation of the seized goods valued at Rs. 2,26,06,310/- the applicant requests that the goods may not be ordered for confiscation or a lenient view may be taken for imposition of fine. * The applicant has applied for re-exportation of goods in July, 2016 and its about more than a year since the goods were imported. The sole criteria for re-export of goods is its quality before export and for that the applicant has repeatedly requested the department to permit it to take samples and get it tested whether there is any fungal infection in the product or not, but till date the same has not been granted without any valid reasons. * Applicant reque....
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....ntion that the animal feed supplement is only a raw material for manufacture of poultry feed which was substantiated by the version of the manufacturer of poultry feed. However, the applicants nowhere denied the version of the manufacturer relied by the department. * The applicants' questioning the statement recorded by the Department under duress or pressure cannot be acceptable since it is voluntary statement given by him under Section 108 of the Customs Act, 1962. * The department had taken up the investigation during June, 2016 and during the course of investigation, the Quarantine Officer (SR) stated that the consignments of Protein Meal Animal Feed Supplement imported vide Bill of Entry No. 5420683, dated 27-5-2016 and 5490477, dated 2-6-2016 imported by M/s. Shiva Biochem, Rajkot contained Meat and Bone Meal which came under the category of livestock products and categorized the same as high risk commodity and also requested the department to take immediate action regarding deportation/destruction at the cost of the applicant under intimation to them, since the applicant had not fulfilled the mandatory requirement and also not having proper Sanitary Import Permit (SIP) a....
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....mission and hence there was no requirement to file any reply or appear before the adjudicating authority. They had not informed the adjudicating authority within the stipulated time but they have neither replied to the SCN nor informed the adjudicating authority and filed the application before the Settlement Commission, Chennai after a period of six months without accepting the entire duty liability. Hence the reply given by them is not reasonable and cannot be considered. * In every stage, the applicants hide the facts and not disclosing/accepting their mistake to Settlement Commission and disputing all the allegations placed by the department which appears that they have not approached the Settlement Commission for settlement of the case. Hence this is a fit case for sending back to the adjudicating authority for adjudication proceedings. Post hearing submissions dated 29-9-2017 of M/s. Shiva Biochem on the report of the jurisdictional Commissioner F. No. VIII/17/31/2017-Legal, dated 1-9-2017 : 8.1 The authorised representative of the applicant vide his report dated 29-9-2017 has inter alia submitted that : They are not disputing the classification and they accept the....
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....stead of 30% as proposed in the show cause notice. 9.3 With regard to the proposal for confiscation of the consignments imported in the past, he submitted that the same cannot be confiscated as the goods were not physically available for confiscation and hence the question of imposition of redemption fine also does not arise. 9.4 Regarding imposition of penalty the consultant submitted that no penalty could be imposed on Shri Hiren Kalaria as he was not in-charge of both the companies that M/s. P.N. Enterprises is a proprietorship concern and hence penalty cannot be imposed on both the proprietor and the firm simultaneously; that M/s. Shiva Biochem is a partnership concern and penalty cannot be imposed on the partners as well as on the firm. He prayed for leniency in the imposition of penalty as they have fully paid the customs duty involved along with interest thereof. He also prayed for immunity from prosecution; he also stated that as they have paid over and above the amount demanded in the show cause notice, remaining amount may be refunded to them. 9.5 Shri A. Murali, SIO, DRI, Tuticorin appeared for the Department and beside reiterating the contents of Commi....
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....rmission for drawing samples was granted and from the test report of the sample, it may kindly be seen that it is having 48.51% Protein, Ash-35.19%, FFA of extracted oil-4.6%, Oil Content-8.58%, Phosphorus-5.95% and Calcium-12.18%, which sufficiently indicate that the goods are protein animal feed supplement/Additive. * The quarantine officer had also opined that the imported goods may be deported/destructed immediately and the applicant had also requested for re-export of the goods on 21-7-2016, 25-7-2016 and 5-9-2016. * The applicant had requested to take samples on 7-11-2016, the permission was granted only after about nine months on 16-8-2017. Again the officer concerned allowed taking of samples only on 11-9-2017. * In the first report of department, it was confirmed by the Commissioner that there is an excess payment of Rs. 85,41,747/- and now in its second report it is mentioned by the department that there is an excess payment of Rs. 46,21,951/- only. In the calculation sheet attached with the second report department has not taken into consideration the amount of Rs. 39,19,799/-. The balance amount payable as per SCN demand is Rs. 1,42,38,415/-. Department had ....
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....ed Supplement" and not "Organic Manure composite fertilizer" as claimed by the importer and accordingly compliance with the provisions of Fertilizer Control Order, 1985 is not required. * Whereas, the total differential duty for the 16 Bills of Entry works out to Rs. 2,35,65,839/- Land the importer has voluntarily paid all the duty liability. As pointed out by the applicant, the fact was verified and it is submitted that the amount paid during investigation towards differential duty has been inadvertently shown as Rs. 2,38,25,532/- instead of Rs. 2,35,65,839/- and the discrepancy was already informed in the report dated 6-6-2017. Further, there was no excess amount paid by the applicant as per the duty calculation done by the department on merits. * If the impugned goods are ordered for re-export, the import consignment of M/s. Shiva Biochem, Rajkot under 2 live Bills of Entry will not attract duty and hence they are entitled for refund, after deduction of redemption fine, penalty imposed by the Hon'ble Settlement Commission and the interest payable, from the total duty amount of Rs. 69,85,350/- paid during the investigation and at the time of import. * The applican....
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....duty liability of Rs. 81,85,679/-calculated @ 20.6% (12 Bills of Entry). The import product "Protein Meal Animal Feed Supplement" is only a raw material which is substantiated with the evidences/discussions placed in the SCN and does not come under the category of "Feed Additive or Premix" and hence the importer is not eligible for the exemption benefits as claimed in their Settlement Commission application and it is an afterthought and cannot be considered. * It is once again requested to uphold the rejection of the request for exemption claim under Sl. No. 106 of tariff Notification No. 12/2012-Cus., dated 17-3-2012 as amended for the impugned goods as recommended by the department and the differential duty ordered to be calculated/finalized @ 30.9% on merits. 10.2 The jurisdictional Commissioner has further given consolidated payment particulars : Sl. No. M/s. SHIVA BIOCHEM, RAJKOT 1. Total differential duty amount (@ 30.9%) in respect of 16 nos. of Bills of Entry inclusive of 4 provisionally assessed Bills of Entry Rs. 2,35,65,839/- 2. Total amount paid during investigation Rs. 2,35,65,839/- 3. Total amount demanded in the SCN in respect of 12 Bills of Entry (....
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....nts, he had correctly declared the description of goods as "Protein Meal Animal Feeds", cleared the goods under CTH 2309 90 10 on payment of Customs duty @ 30.9%; in respect of the remaining 3 consignments, he misdeclared the goods as "Organic Manure-Composite fertilizer", cleared the goods under CTH 3101 00 99 on payment of Customs duty @ 5%. On conclusion of investigation, the impugned SCN has been issued demanding differential duty of Rs. 16,29,100/- and interest thereof. 11.4 Subsequently, Shri Hiren Bhavanji Kalariya, stopped importing in the name of M/s. P.N. Enterprises, and started importation in the name of M/s. Shiva Biochem, and made import of 16 consignments during the period from November, 2015 to May, 2016. In respect of all the 16 consignments, as per the investigation conducted, the applicant imported 'Protein Meal Animal Feed Supplement' and misdeclared the description as 'Organic Manure-Composite Fertilizer', self-assessed the Bill of Entry under CTH 3101 00 99 and cleared the goods on payment of 5% Customs duty as against Customs duty of 30.9%, applicable to "Animal Feed Supplement" classifiable under CTH 2309 90 10. Out of the 16 consignments imported, 12 ....
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....f India, reported that the goods referred to them contained 'Meat and Bone meal' which comes under the category of 'Livestock products' and is categorized as high risk commodity. As per Notification No. 2666(E), dated 16-10-2014, the import of the said product can be done only after obtaining Sanitary Import Permit (SIP) in advance from the Ministry of Agriculture & Farmers' Welfare, New Delhi. Secondly Tuticorin port is not authorized for import of livestock products. It clearly proves that the goods imported cannot be termed as 'Feed additives or premixes' and in fact is 'animal feed' and therefore, the Bench is of the considered view that the benefit of the exemption notification cannot be extended to the goods in question and accordingly, rejects the claim of the applicant for extending the benefit. 11.7 The SCN also proposes the finalization of provisional assessments done in respect of 4 Bills of Entry, including the two live Bills of Entry under seizure. In view of the above findings of the Bench, the Bench orders finalization of all the 4 Bills of Entry treating the goods as 'Protein Meal animal Feed Supplement' and not 'Organic Manure-Composite Fertilizer', as claime....
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....e his report dated 6-6-2017 has stated that if the applicant preferred for re-exportation of the subject goods on payment of redemption fine, then there is no objection from the department keeping in mind, for safety of the environment of the nation as the impugned goods were categorized as high risk commodity. The Bench is of the view that, as the seized goods covered by the two Bills of Entry have been termed as 'high risk commodity' requiring valid Sanitary Import Permit prior to importation, by the regulatory Authorities, the same cannot be allowed to be cleared for home consumption. Accordingly, in the facts and circumstances of the case, the Bench is of the view the request for re-exportation can be favourably considered and in fact the Revenue proposes the same in the impugned SCN. As the re-export of two live consignments under seizure which is figuring in Annexure VI to the SCN under provisional assessment, falls under the domain of the jurisdictional Commissioner, the Bench hereby directs the jurisdictional Commissioner to allow the re-export of the live consignments seized vide Bills of Entry No. 5420683/27-5-2016 & 5490477/2-6-2016 as per the provisions of the statute. ....
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....27-5-2016 & 5490477/2-6-2016 with a total assessable value of Rs. 2,26,06,310/- under Sections 111(d) and 111(m) of the Customs Act, 1962 and imposition of redemption fine (Or) for re-exportation/destruction of the goods so imported since the import consignment was not accompanied with valid Sanitary Import Permit at the time of import and Tuticorin port was not an authorized port for import of livestock products as per the Notification No. 2666(E) dated 16-10-2014 issued by Ministry of Agriculture and Farmers' Welfare (Department of Animal Husbandry, Dairying and Fisheries), New Delhi. 11.14 In addition to the above, the notice also proposes the confiscation of goods imported under 14 Bills of Entry by M/s. Shiva Biochem with total assessable value of Rs. 7,23,81,134/-. As discussed in detail supra, the Bench observes that the goods imported under all the 16 Bills of Entry are liable for confiscation as per the provisions of Sections 111(d) and 111(m) of the Customs Act, 1962. The Bench also observes that except the two consignments under seizure and the goods covered by two Bills of Entry provisionally assessed, the goods covered by the remaining 12 Bills of Entry a....
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....demption fine on the goods in lieu of confiscation does not arise. Penalty : On the main-applicants I & II (M/s. Shiva Biochem and M/s. P.N. Enterprises) and on the Co-applicants, Shri Hiren Bhavanji Kalariya, Director of M/s. Shiva Biochem, Rajkot, (Co-Applicant-I), Shri Vipul Laljibhai Bavara, Director of M/s. Shiva Biochem, Rajkot, (Co-applicant-II), Shri Narendra Hirjibhai Adroja, Proprietor of M/s. P.N. Enterprises, Morbi ("Co-applicant-III") and Shri Ameet K. Dedhia, Proprietor of M/s. Amit Cargo International, (Co-Applicant IV) pertaining to M/s. Shiva Biochem, Rajkot, and Shri Ameet K. Dedhia, Proprietor of M/s. Amit Cargo International, (Co-Applicant V) pertaining to M/s. P.N. Enterprises. 11.17 This is a case where the applicants, viz., M/s. Shiva Biochem, Rajkot and M/s. P.N. Enterprises, Morbi, have evaded payment of appropriate Customs duty by misdeclaring the actual goods, i.e. animal feed supplement, as "Organic Manure" to Customs. Investigations revealed that many companies were floated aboard for raising invoices wherein the goods were misdeclared. Their past imports and the domestic sales clearly established that the goods imported were sold as Animal Feed....
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....ed in the impugned SCN. M/s P.N. Enterprises, Morbi is a proprietorship concern. The Proprietor and the concern cannot be treated as two separate legal entities. If the firm is penalised, penalty imposed on Proprietor would amount to imposition of penalty twice over, which cannot be sustained in the eyes of law. Drawing strength from the decisions of Hon'ble Apex Court in the case of Pragati Press v. Collector of Customs, 1999 (113) E.L.T. A182 (S.C.) and Hon'ble High Court of Punjab and Haryana in the case of Vinod Kumar Gupta v. Commissioner of Central Excise, reported in 2013 (287) E.L.T. 54 (P & H) the Bench refrains from imposing any penalty on Shri Narendra Hirjibhai Adroja, Proprietor of M/s. P.N. Enterprises. 11.21 It is a matter of fact that, but for the interception of the import consignments and detailed investigation by the Officers of the DRI, the modus operandi would have gone unnoticed and the applicants would have continued to evade duty by adopting the fraudulently devised plan. 11.22 The act of the main-applicants and co-applicants attract penalty under the provisions invoked in the SCN. However keeping in view the full and true disclosure of additiona....
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....ctional Commissioner, on payment of the said fine, is directed to ensure that the impugned goods are re-exported. (b) The goods cleared provisionally under two Bills of Entry, viz., 4953712, dated 18-4-2016 and 5087378, dated 29-4-2016, with an assessable value of Rs. 1,36,16,685/-, for home consumption are also confiscated under Sections 111(d) and 111(m) of the Customs Act, 1962. However, the applicant is given an option to redeem the goods on payment of redemption fine of Rs. 3,00,000/- (Rupees Three lakhs only) under Section 125 of the Customs Act, 1962, subject to the condition that appropriate duty is paid. (c) Impugned goods imported vide 12 Bills of Entry (as listed in Annexures IIIA and IIIB to the SCN) with a total assessable value of Rs. 5,87,64,449/- are liable for confiscation under Sections 111(d) & 111(m) of the Customs Act, 1962. However, the question of ordering confiscation and imposition of redemption fine do not arise in the instant case as there was no seizure of the impugned goods at any point of time. iv. PENALT....
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....yment of the penalty imposed as above within 30 days from the date of receipt of this Order, the main applicants and co-applicants are granted immunity from prosecution under the Customs Act, 1962. Order pertaining to M/s. P.N. Enterprises, Morbi : 13.1 In the light of the above, the Bench settles the case under Section 127C of the Customs Act, 1962 on the following terms and conditions : i. DUTY : The additional differential amount of Customs duty in this case is settled at Rs. 16,29,100/- (Rupees sixteen lakhs twenty-nine thousand one hundred only). As the applicant has already paid the said amount as confirmed by the Revenue, the same is appropriated and adjusted towards the duty liability and no further liability subsists in this regard. ii. INTEREST : The interest amount is settled at Rs. 2,02,654/-. The applicant is directed to pay the said amount within 30 days from the date of receipt of this Order and submit proof to the jurisdictional Commissioner. iii. FINE : (a) The Bench holds that the imported goods with a total assessable value of Rs. 66,03,9....