TaxTMI 
TaxTMI 
2019 (4) TMI 948
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....ce Mumbai Zonal Unit, to effect that M/s Bhitti Impex (Appellant 1) and M/s Dee Vee Metals proprietorship concerns of Shri Dileep Kumar Dugar had imported "Non Ferrous Metal Scrap" by mis-declaring the value. They had also sold certain consignments on High Sea sales basis which also have been cleared by mis declaring the value. 2.2 Investigations revealed that M/s Bhitti Impex and M/s Dee Vee Metals had imported consignments of "Non Ferrous Metal Scrap" from UK, Germany and other countries. Enquiries were initiated through Consulate General of India (CGI), London and Brussels. Based on the reference made and investigations conducted a show cause notice dated 06.08.2008 was issued to M/s Bhitti Impex and others, 2.3 Subsequent to issuance of show cause notice, CGI, Brussels forwarded a report with regards to 34 consignments of the subject goods imported by the said persons from overseas supplier namely M/s Nord Schrott GmbH & Co KG, Fiensberg, Germany and M/s TSR Recycling GmbH & Co KG Hamsburg, Germany. It was intimated that these persons made part payment of the finally negotiated price (contract amount) with their supplier prior to shipments of goods and the balance at time....
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....tal Pigments Pvt Ltd and Shri Ramesh Agarwal. While disposing of the said appeals tribunal stated " ..... for the reasons mentioned above, we set aside the impugned order and allow the appeal." The impact of the said order of tribunal is setting aside the whole of impugned order in appeal no 104-110 (Gr IV)/2017 (JNCH)- Appeal-II dated 21.02.2017 of the Commissioner (Appeal). Since the whole order in appeal has been set aside the present appeals also need to be allowed. The earlier order of Tribunal was passed relying on the decisions as follows: a. South India Televisions Pvt Ltd. [2007 (214) ELT 3 (SC)] b. Contessa Commercial Co Pvt Ltd [2007 (208) ELT 299 (T-Kol)] c. Ramkrishna Sales Pvt Ltd. [2008 (230) ELT 431 (T-Ahd)] d. Taito Watch Manufacturing Inds [2009 (173) ELT 17 (T-Del)] ii. Tribunal has in its earlier order also noted that original authority has recorded evidence showing that nothing had been paid more than the agreed price through the banking channels and thus there were no clandestine remittances over and above the invoice price and thus the whole case of under invoicing is required to be quashed. iii. Since the charges aga....
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....etals, M/s Mittal Pigments Pvt Ltd, M/s Leadage Alloys Ltd., M/s Associated Stabplast & Chemicals, M/s Premier Pigments, Shri Dileep Dugar Proprietor of M/s Bhitti Impex and M/s Dee Vee Metals, Shri Ramesh Aggarwal Director of M/s Mittal Pigments, Shri Ramanand Agrawal Representative of M/s Associated Stabplast & Chemicals and Shri S Ayyappan Partner of Premier Pigments. The show cause notice demanded duty separately from each of noticee as detailed in Annexure attached to the show cause notice. Relevant details from the said annexure are reproduced below: S N Importer Bill of Entry Description Quantity in MT Supplier/ Shipper Duty Demanded No Date 1 M/s Bhitti Impex 752490 29.11.04 Nickel Silver Scrap Malic /Niece 19.62 M/s Nord Schroff Gmbh & Co 272030 2 879772 31.05.05 Shredded Nickel Silver Scrap /Niece 20.58 234146 3 M/s Dee Vee Metals 670715 13.01.06 Shredded Nickel Silver turning Scrap /Niece 17.72 219836 4 840747 07.12.05 25.14 M/S TSR Recycling GMBH 340962 5 M/s Mittal Pigments Pvt Ltd 744680 13.04.06 Zinc Scrap "Score" 44.84 506626 6 M/s L....
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....[impugned order], to the extent of appellants before that bench is set aside, and not the entire order. It may happen in case where there are multiple noticees, few may not chose to challenge the order passed against by them. In case the order is set aside in respect of those who have filed the appeal is set aside then it will not imply that relief has been granted to the all the noticees. A nine member bench of Apex Court has in case of Mafatlal Industries [1997 (89) ELT 247 (SC)] observed as follows: "70. Re : (II) :We may now consider a situation where a manufacturer pays a duty unquestioningly - or he questions the levy but fails before the original authority and keeps quiet. It may also be a case where he files an appeal, the appeal goes against him and he keeps quiet. It may also be a case where he files a second appeal/revision, fails and then keeps quiet. The orders in any of the situations have become final against him. Then what happens is that after an year, five years, ten years, twenty years or even much later, a decision is rendered by a High Court or the Supreme Court in the case of another person holding that duty was not payable or was payable at a lesser rate i....
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....the Additional Director DRI is without jurisdiction in view of the decisions relied upon by them as indicated in para 3(2)(iv). This submission made by the counsel is contrary to the decision of Hon'ble Bombay High Court in case of Sunil Gupta [2015 (315)ELT 167 (Bom)]. In that decision, jurisdictional High Court has held as follows: "23. We have found that Section 28(11) was inserted by Act 14 of 2011 w.e.f. 16th September, 2011. That alters the basis of the Judgments, which have been delivered by any Court of law, Tribunal or other authority. Once this section says that all persons appointed as officers of Customs under Section 1(4) before 6th July, 2011 shall be deemed to have been and always to be the proper officers for the purpose of this section, then, the Notifications, which are referred by us above at page 369 and 373 of the paper book are specifically saved and validated. They have been given a retrospective effect. These Notifications were holding the field and were not quashed or set aside. In the teeth of such Notifications, the legislature stepped in to clarify the position that if the functions of the Customs officer can be entrusted or assigned by the Central Go....
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....Petition is without any merit. The Explanation removes the doubts and states that even those cases which are governed by Section 28 and whether initiated prior to the Finance Bill, 2011 receiving the assent of the President shall continue to be governed by Section 28, as it stood immediately before the date on which such assent is received. The reference to Finance Bill therein denotes the bill by the section itself was substituted by Act 8 of 2011 w.e.f. 8th April, 2011. Prior to this Bill by which the section was substituted receiving the assent of the President of India, some cases were initiated and Section 28 was resorted to by the authorities. The Explanation 2 clarifies that they will proceed in terms of the un-amended provision. The position dealt with by insertion of Section 28(11) is distinct and that is about competence of the officer. The officers namely those from the Directorate of Revenue Intelligence having been entrusted and assigned the functions as noted above, they are deemed to have been possessing the authority, whether in terms of Section 28 un-amended or amended and substituted as above. In these circumstances, for these additional reasons as well, the chall....
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.... Mittal Pigments Pvt Ltd, M/s Leadage Alloys India Pvt Ltd., M/s Associated Stabplast & Chemicals and M/s Premier Pigments. The metal scrap was sold in 34 consignments of which demand on 19 consignments were found time barred. Of the remaining 15 of the said consignments of the said 34 consignment that was investigated it was found that in 13 of the consignments imported by various importers from Germany there was under invoicing. So the value of the consignments were enhanced and penalties were imposed. Being aggrieved, the appellants have filed the present appeals. 3. In the present case, Shri Dileep Dugar, Proprietor of M/s Bhitti Impex and M/s Dee Vee Metals has sold the "Non Ferrous Metal Scrap" on the basis of high sea sales. 4. The sole case of the department is made out on the basis of invoices of higher value received from Brussels through Consulate General of India ((Trade) for the impugned consignments submitted for clearance of the consignments." The facts as noted by the Tribunal in the said order is that the M/s Mittal Pigments had purchased the goods on High Sea Sale from Shri Dileep Dugar. It would be on the basis of sale price between Shri Dileep Dugar and....
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....l of India ((Trade), Brussels was higher than value declared as per 1st Set of invoices used for filing the Bill of Entries. 5.12 There is sufficient corroboration to the charge of undervaluation of goods made in the show cause notice. Further we also find that tribunal has in case of similar nature vide Final Order No 85502-85509/18 dated 01.03.2018, in case of Ramesh Dalmia and Others, held as follows: "6. The issue to be decided by us is that whether the documentary evidence produced by the High Commission of India, U.K. which was obtained from Italian Customs can be relied upon. If it can be relied upon, whether the value should be enhanced or otherwise. We find that the appellant declared the value as per the invoice shown to have been issued by M/s Delbi Fibres. However, on enquiry from the Italian Customs, documents were obtained from supplier M/s Delbi Fibres. Those documents are invoices, bill of exports, bill of lading and M/s Delbi Fibres in the said enquiry also submitted co-relation chart. On close scrutiny of these documents, we find that the invoice no. and date are matching with those invoices. Bill of export, bill of lading etc produced by M/s Delbi Fibres to....
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....the real one has been indicated. I have nothing else to declare.""" Details on the identity of Mr. Dalmia of Jaipur has not been ascertained from the Italian supplier." 6.3 From the above statement of M/s Delbi Fibres given by the Italian Customs authorities, it clearly reveals that all the documents submitted by the supplier are genuine and correct and considered as valid evidence. Therefore the same cannot be doubted. 6.4 Taking into consideration of the documents produced as evidence, we are of the view that all these documents are authentic and cannot be doubted. If it is so, it is established that the appellant had under-valued the goods. Accordingly, enhancement of the value and confirmation of differential duty demand and penalty related to such demand are correct and legal. Hence the same are upheld. As regard the redemption fine, we find that though the redemption fine was imposed but the goods were not available for confiscation. In the case of Shiv Krupa Ispat Pvt. Ltd. (supra) wherein it was held that in case the goods are not available and if the goods are not released provisionally, redemption fine cannot be imposed. Therefore, in the present case neith....
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.... imported Goods) Rules, 1988 made thereunder and redetermined at the ascertained value of Rs. 43,66,583.55/- (As enumerated in Annexure A to the SCN). e. I order confiscation of the goods (as mentioned at Sr. NO. 3 to 4 of Annexure A) of ascertained CIF of Rs. 43,66,583.55/- in terms of provisions of Section 111(d) and 111(m) of the Customs Act, 1962 as the goods were misdeclared with reference to value. Since the said goods are not physically available, I refrain from imposing redemption fine on the goods imported. f. I demand, confirm and recovery of total duty amount of Rs. 12,57,406/- leviable on total reassessed value Rs. 44,10,240/- of goods covered under bills of entry (as enumerated at Sr. No. 3 & 4 in Annexure A to the SCN) after adjusting duty amount of Rs. 6,96,608/- and the differential duty amounting to Rs. 5,60,798/- (as enumerated at Sr. No. 3 % 4 in Annexure-A) should be recovered from them under the proviso to Section 28(2) (now 28(8)) of the Customs Act, 1962 with interest under Section 28AB (now 28AA) of the Customs Act, 1962. 9. I reject the total declared CIF value of Rs. 11,06,097.10/- in respect of 1 consignment....
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....s covered under bills of entry (as enumerated at Sr. NO. 6 in Annexure-A to the SCN) after adjusting duty amount of Rs. 5,28,239/- and the differential duty amounting to Rs. 1,32,059/- (as enumerated at Sr. No. 6 in Annexure-A) from them under the proviso to Section 28(2) (now 28(8)) of the Customs Act, 1962 with interest under Section 28AB (now 28AA). m. I reject the total declared CIF value of Rs. 23,90,319/- in respect of 1 consignment of non ferrous metal scrap imported by M/s. Associated Stabplast & Chemicals (as mentioned at Sr. No. 7 of Annexure-A to the SCN) for the purpose of assessment of goods to duty in terms of provisions of Section 14(1) of the Customs Act, 1962 read with the Valuation (Determination of price of imported Goods) Rules, 1988 made thereunder and redetermined at the ascertained value of Rs. 28,38,699.10/- (As enumerated in Annexure A to the SCN). n. I order confiscation of the goods (as mentioned at Sr. No. 7 of Annexure-A) of ascertained CIF of Rs. 30,54,296.50/- in terms of provisions of Section 111(d) and 111(m) of the Customs Act, 1962 as the goods were misdeclared with reference to value. Since the goods ....
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....a penalty of Rs. 1,00,000/- (Rupees One Lakh Only) on Shri Dilip Dugar, Proprietor of M/s. Bhitti Impex, M/s. Dee Vee Metals under Section 112(a) of the Customs Act, 1962. (ii). 1 impose a penalty of Rs. 1,00,000/- (Rupees One Lakh Only) on Shri Ramesh Agarwal, Director of M/s. Mittal Pigments under Section 112(a) of the Customs Act, 1962. (iii). I impose a penalty of Rs. 1,00,000/- (Rupees One Lakh Only) on Shri Ramanand Agarwal, representative of M/s. Associated Stabplast & Chemicals under Section 112(a) of the Customs Act, 1962. (iv). I impose a penalty of Rs. 1,00,000/- (Rupees One Lakh Only) on Shri S. Ayyappan, Partner of M /s. Premier Pigments under Section 112(a) of the Customs Act, 1962. t(i). I impose a penalty of Rs. 50,000/- (Fifty Thousand Only) on Shri Dilip Dugar, Proprietor of M/s. Bhitti Impex and M/s. Dee Vee Metals under Section 114AA of the Customs Act, 1962. (ii) I impose a penalty of Rs. 50,000/- (Fifty Thousand Only) on Shri Ramesh Agarwal, Director of M /s. Mittal Pigments Pvt Ltd under Section 114AA of the Customs Act, 19652. ( iii). I impose a penalty of Rs. 50,000/- (Fifty Thousand Only) on....
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....ot be recovèred from them under the proviso to Section 28 of the Customs Act, 1962 with interest under section 28 AB; (d) the total declared C.I.F value of Rs.20,56,724.25 in respect of 02 consignments of non ferrous metal scrap imported by M/s. Dee Vee Metals (as mentioned at Sr. No. 3 & 4 of Annexure-A to this show cause notice) should not be rejected for the purpose of assessment of goods to duty in terms of provisions of Section 14(1) of the Customs Act 1962 read with the valuation (Determination of price of imported goods) Rules 1988 made thereunder and redetermined at the ascertained value of Rs. 43,66,583.55 (as enumerated in Annexure A to this Show Cause Notice); the goods (as mentioned at Sr. No. 3 to 4 of Annexure A) of ascertained CIF of Rs.43,66,583.55 should not be held liable to confiscation in terms of provisions of Sec. 111(d) and 111(m) of the Customs Act 1962 as the goods were mis-declared with reference to value, though the said goods are not physically available; Document 5 (f) total duty amount of Rs.12,57,406/- leviable on total reassessed value Rs.44,10,240/- of goods covered under bills of entry (as enumerate....
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....the goods (as mentioned at Sr.No.6 of annexure A) of ascertained CIF of Rs.28,38,699.10 should not be held liable to confiscation in terms of provisions of Sec.111(d) and 111(m) of the Customs Act 1962 as the goods were misdeclared with reference to value, though the said goods are not physically available; (1) total duty amount of Rs.6,60,298/- leviable on total reassessed value Rs.29,24,427.80 of goods covered under bills of entry (as enumerated at Sr.No.6 in Annexure A to this Show Cause Notice) should not be demanded after adjusting duty amount of Rs.5,28,239/- and the differential duty amounting to Rs.1,32,059/- (as enumerated at Sr.No.6 in Annexure-A) should not be recovered from them under the proviso to Section 28 of the Customs Act, 1962 with interest under section 28 AB; the total declared C.I.F value of Rs.23,90,319/- in respect of 01 consignment of non ferrous metal scrap imported by M/s. Associated Stabplast & Chemicals (as Document 6 (n) mentioned at Sr.No.7 of Annexure-A to this show cause notice) should not be rejected for the purpose of assessment of goods to duty in terms of provisions of Section 14(1) of the Customs Act....
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....ustoms Act, 1962 with interest under section 28 AB; (s) Penalty under the provisions of Section 112(a)/114A of the Customs Act, 1962 should not be imposed on M/s Bhitti Impex, M/s Dee Vee Metals, Shri Dileep Dugar proprietor of M/s Bhitti Impex and M/s Dee Vee Metals, M/s Mittal Pigments Pvt Ltd, Shri Ramesh Agarwal, director of M/s Mittal Pigments Pvt Ltd, M/s Leadage Alloys India Ltd, M/s Associated Stabplast & Chemicals, Shri Ramanand Agarwal, representative of M/s Associated Stabplast & Chemicals, M/s Premier Pigments, and Shri S. Ayyappan, partner of M/s Premier Pigments whose acts of omission and commission rendered said goods liable to confiscation Penalty under the provisions of Section 114AAof the Customs Act, 1962 should not be imposed on Shri Dileep Dugar proprietor of M/s Bhitti Impex and M/s Dee Vee Metals, Shri Ramesh Agarwal, Director of M/s Mittal Pigments Pvt Ltd, Shri Ramanand Document 7 Agarwal, representative of M/s Associated Stabplast & Chemicals, and Shri M S Ayyappan, partner of M/s Premier Pigments who had knowingly or intentionally made, signed or used, or caused to be made, signed, or used, the declaration, stateme....