TaxTMI 
TaxTMI 
2019 (12) TMI 570
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.....05.2016 and booked for delivery at M/s Sky Traders, 212, Usha Kiran Building, 2nd floor, Azadpur, Delhi-110033, but they were intercepted in front of premises of M/s Malhotra Road Carriers, AG- 88, Sanjay Gandhi Transport Nagar, New Delhi by DRI on 18.05.2016. On examination by DRI, all the goods were matching in description, value and quantity as per the declaration by M/s Sky Traders, except Rechargeable Batteries which the DRI said was Lead Acid Rechargeable Batteries. During investigation, the DRI visited the official and residential premise of IEC Holder M/s Sky Traders but did not find the IEC Holder there. However, the Appellant Shri Anil Kapani visited DRI(HQ) and claimed to be the owner of the goods and his statement was recorded under Section 108 of the Customs Act wherein he stated that he placed an order for some goods in the firm M/s Lumevox Enterprises, but when the goods arrived at Kolkata Port, M/s Lumevox Enterprises told the Appellant that there were some issues in its IEC and thus the Appellant should not use it. Thereafter, the Appellant informed the supplier M/s Capitol Group Limited to convert the Bill of Lading in the name of another IEC Holder M/s Sky Tra....
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....a), 112(b) and 114AA of the Customs Act 1962 should not be imposed, which culminated into Order-in-Original dated 30.01.2018 whereby the goods were confiscated with option to redeem on payment of Redemption Fine of Rs. 4,50,000/- and penalties were imposed on all the three Noticees in the Show Cause Notice. Penalties of Rs. 5,00,000/- under Sections 112(a)(i) & 112(b)(i), and of Rs. 5,00,000/- under Section 114AA of the Customs Act, 1962 were imposed on the Appellant herein vide Order-in-Original dated 30.01.2018. The Appellant herein filed an appeal before the Ld. Commissioner (Appeals), who, by the impugned order dated 13.08.2019, partially allowed the appeal by reducing the Penalty under Sections 112(a)(i) & 112(b)(i) of the Customs Act, 1962 to Rs. 4,00,000/- and reducing the Penalty under Section 114AA of the Customs Act, 1962 to Rs. 4,50,000/-, but upheld the order of confiscation of goods as well as the quantum of Redemption Fine. Being aggrieved, the Appellant is in appeal before the Tribunal. 3. Shri Aakarsh Srivastava, Ld. Counsel for the Appellant has argued the matter at length and states that the impugned order has been passed by the Ld Commissioner (Appeals) after a....
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....lace of lead acid rechargeable batteries no advantage would have fallen upon the Appellant or IEC Holder. He further submits that even if one assumes without admitting that this is an error, at best it is a pure technical or clerical error since the Registration Certificate from Ministry of Environment and Forests can be obtained easily by submitting documentation as required in the Standard Operating Procedure for Grant, Renewal or Cancellation of registration to the Importers of New Lead Acid Batteries under Rule 5 of the Batteries (Management and Handling) Rules, 2001 as amended in 2010. He states that description of goods in the Bill of Entry is based on Invoice and Packing List prepared by the supplier which was "Rechargeable Batteries" in this instance, so there is no fault of the Appellant or the IEC Holder and therefore neither confiscation of goods is warranted nor any penalty can be imposed on the Appellant, as held by the Ld. CESTAT Delhi in Final Order numbers 53182-53183/2018 dated 26.10.2018 in the case of Shri L R Maurya vs CC Bhopal and M/s Ideal Carpets Ltd vs CC Bhopal in Appeal Numbers C/50238/2018(DB) and C/51246/2018(DB). Ld. Counsel submits that the Appellan....
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....Act 1962 on the Appellant does not arise. Ld. Counsel further submits that the Appellant did not know the Rechargeable Batteries were of lead acid variety uptill the time that DRI apprised them of this fact. The Appellant never knowingly or intentionally made, signed or used or caused to be made, signed or used any declaration, statement or document which was false or incorrect in any material particular, in the transaction of any business for the purposes of this Act. Registration Certificate from Central Pollution Control Board was taken as soon as it came to be known through the DRI that rechargeable batteries were of lead acid variant. Ld. Counsel submits that as seen from Appellants statement under Section 108 of the Customs Act, he immediately informed the supplier and CHA about change in name of IEC Holder from M/s Lumevox Enterprises to M/s Sky Traders, thus invoking penalty under Section 114AA of the Customs Act 1962 on the Appellant is unwarranted as held by the Ld CESTAT Mumbai in Suketu Jhaveri vs Commissioner of Customs (Import) Nhava Sheva 2014(314) ELT 828. 5. The Ld. D.R justifies the findings of the Ld. Commissioner (Appeals) and prays that the appeal may be di....
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.... when the DRI intercepted the consignment in Delhi, and as soon as this fact came to light, Registration Certificate vide F.No B-29016/BMHR/2016- Importer/HWMD/5145 dated 13.07.2016 was obtained from Central Pollution Control Board, Delhi, and this ought to be treated as valid from the date of import. I also find force in the contention of the Ld. Counsel for the Appellant that if the foreign supplier or Kolkata Customs officials had informed the Appellant or IEC Holder regarding this, a correction could have been done under Section 149 of the Customs Act 1962 by amending the documents since nothing turns on such an error because no advantage would have fallen upon the Appellant or IEC Holder as this is a purely technical and clerical issue since Registration Certificate from Ministry of Environment and Forests is easy to obtain by submitting the documents as required under the Standard Operating Procedure for Grant, Renewal or Cancellation of registration to the Importers of New Lead Acid Batteries under Rule 5 of the Batteries (Management and Handling) Rules and also that description of goods in the Bill of Entry is based on Invoice and Packing List prepared by the supplier which....