AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2020 (3) TMI 531
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.... - for the Respondent. ORDER This batch of 18 appeals preferred by appellants falling broadly in category of importer, CHA representative, Freight Forwarder, consultant, and individuals un-authorizedly engaged in customs clearance work. These appeals have arisen out of a common order-in-original No. 03/2017-18/V.S./COMMR (IMPORT) read with Corrigendum dated 20/07/2018 passed the Commissioner of Customs, ACC (Import), New Custom House, New Delhi. The status of the Appellants and the corresponding duty or/and penal liability confirmed against them by the impugned order has been tabulated hereunder:- Sr. No. Appeal No. Appellant Status Duty (Rs.) Penalty (Rs.) 1. C/53447/2018 Pax Technologies Pvt Ltd Importer 1,85,09,843/- 3,76,49,777/- 2. C/53448/2018 Latha Priyadarshini Importer NIL 2,39,00,000/- 3. C/52445/2018 Chinta Haran Ojha CHA Representative NIL 5,05,000/- 4. C/52446/2018 Rakesh Kumar CHA Representative NIL 5,05,000/- 5. C/53272/2018 Rajender Prasad CHA Representative NIL 6,30,000/- 6. C/53482/2018 Sushil Kumar Mishra Individual NIL 32,00,000/- ....
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....he hardware imported by Appellant importer were Bluetooth/wi-fi/GPRS enabled and hence their import required no objection certificate from WPC Wing of Department of telecommunication, ETA Type Approval Certificate and also BIS certification, but no compliance in respect of these policy provisions were made. (d) The imported consignments were grossly mis-declared with regard to description and were also mis-classified under different Customs Tariff Heading. The importer - Appellant wrongly described the 'dummy' or 'parts of debit / credit device' with intent to undervalue the goods and to avoid BIS certification and ETA from WPC. 4. The Bill of Entry-wise violations i.e. undervaluation, non-inclusion of transfer/licence fee and non-submission of BIS and ETA/WPC licence in respect of all the 14 Bill of Entry are summarized in the table below: S. No. B/E No. B/E Date Name of CHA Violations in terms of non submission of BIS certification / ETA Certificate from WPC / undervaluation / using forged invoices/mi-classification / mis-declaration 1 5994463 02.07.14 Chinta Haran Ojha Non submission of BIS / ETA from WPC 2 5994464 02.07.14 C....
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....and Terminal (parts of payment debit/credit device), forgery of invoice, undervaluation and non-inclusion of the value of software in the assessable value of goods. 12 3650483 19.12.15 Prompt Air & Sea Cargo Non submission of BIS / ETA from WPC, mis-classification, mis-declaration of goods as paper for printing in payment debit/credit device and Terminal (parts of payment debit/credit device), forgery of invoice, undervaluation and non-inclusion of the value of software in the assessable value of goods. 13 3851878 08.01.16 Prompt Air & Sea Cargo Non submission of BIS / ETA from WPC, mis-classification, mis-declaration of goods as D-180 Terminal (parts of payment debit/credit device), undervaluation and non-inclusion of the value of software in the assessable value of goods. 14 3851698 08.01.16 Prompt Air & Sea Cargo Non submission of BIS / ETA from WPC, mis-classification, mis-declaration of goods as D-180 Terminal (parts of payment debit/credit device), undervaluation and non-inclusion of the value of software in the assessable value of goods. 5. The investigation has brought forth a fact that though the goods were supplied by a supp....
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.... 9. The arguments submitted by various Advocates appearing on behalf of the appellants are summarized here below :- (A) Appellant- Importer, namely M/s Pax Technologies Pvt. Ltd. (i) Mis-declaration of description of goods: That mis-declaration of description of goods could not be attributed to them as they provided all the documents as received from the oversea supplier to the syndicate comprising Shri Sanjay Kataria and associates; that the manipulations in the import documents and Bill of Entry were handiwork of the syndicate; that they were not party to the mis-declaration which was perpetrated by Sanjay Kataria, Sushil Kumar Mishra and Rajendar alias Raju, and in fact they became victim of nefarious designs of the aforesaid persons. It has further been added that had they been a party to the mis-declaration they would not have filed criminal complaints against Sanjay Kataria and others in police station. (ii) Undervaluation of goods: That they were not a 'Related Party' to the supplier M/s Pax Technologies Ltd. Hongkong but dealt with the supplier on Principal to Principal basis in as much as they did not ever considered themselves as 'Related Partie....
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....he goods are liable for confiscation under Section 111(m) for non-submission of SVB orders is incorrect in so far as though supplier and Appellants have identical names, they cannot be construed as related party in terms of provisions of Rule 2 (2) of Customs Valuation Rules (CVR) 2007; that the goods cannot be held liable for confiscation under Section 111(m) of the Customs Act for mis-declaration in the Bills of entry as the description of the goods in Bills of entry was wrongly depicted by the CHAs without their knowledge. Thus, they are not liable for penalty under Section 114A and 114AA as the fraud was perpetrated not by them but by other persons/noticees; that in absence of collusion, willful mis-statement or suppression of facts on their behalf, imposition of penalty under Section 114A was contrary to the language of the provision; that in the facts and circumstances of the instant case imposition of penalty was contrary to settled law that penalty being quasi-criminal is attracted only in cases of contumacious conduct or willful infringement of the statutory provisions which are conspicuously absent on their part; that they rely on the judgment in cases of Hindustan Steel ....
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....port consignments. It is contended on his behalf that he was not physically involved in forging/faking of import documents, no penalty can be imposed on him. He relied upon certain judgments to impress that no penalty can be imposed on Middle man/Facilitator/Coordinator invoking Sections 112,114A or 114AA. (D) Appellant- Shri Kuldeep Singh - a Freight Forwarder against imposition of penalty: That the Appellant had a very limited role of moving the goods from the Air Cargo Area to the importer's place for a limited period as an authorized representative of the importer; that he didn't have authority either to verify genuineness of the import documents or competency to deal with customs procedure; that he acted on the declaration, information and documents provided by the importer; that he didn't receive any consideration except agency fee; that neither he was involved in any manipulations of the documents nor defaulted in forwarding a revised invoice to the CHA for clearance of impugned goods; that he was not competent to verify or know the technicalities pertaining to the requirements of BIS/ETA certificates, classification or valuation of impugned goods; that no mens rea ....
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....ntion to deceive; whether it is from any expectation of advantage to the party himself or from the ill-will towards the other is immaterial. The expression "fraud" involves two elements, deceit and injury to the deceived. Undue advantage obtained by the deceiver, will almost always cause loss or detriment to the deceived. Similarly a "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage as held in S.P. Chengalvaraya Naidu v. Jagannath [1994 (1) SCC 1]. (iv) In a leading English case i.e. Derry and Ors. v. Peek (1886-90) All ER-1 what constitutes "fraud" was described thus : (All ER p. 22 B-C) "fraud" is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, carelessly whether it be true or false". This aspect of the matter has been considered by Apex Court in Roshan Deen v. Preeti Lal [(2002) 1 SCC 100], Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education [(2003) 8 SCC 311], Ram Chandra Singh's case (supra) ....
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....0 Terminal could be connected via USB cable to Laptop/Desktop and hence neither NOC from WPC was required nor any ETA type approval certificate was required for the two consignments. It is a matter of record that when the goods were put to test by the investigating officers that bluetooth was installed in the goods and those goods were bluetooth enabled, then only the appellant-Importer accepted that the device D-180 was Bluetooth enabled, the import of which required NOC from WPC and ETA Type Approval Certificate. This fact establishes an attempt of wilful mis-declaration of description of goods and mens rea on behalf of appellants to evade duty and circumvent Foreign Trade Policy provisions applicable to impugned goods. It is also a matter of fact that even the Master Distribution Agreement mentioned 'transfer prices offered by the Company to the Master Distributor for the main POS models. Inbuilt contactless is included on models where available', despite this the appellant chose not to declare this fact and rather attempted to suppress the actual description for obvious reasons. (ii) Undervaluation of goods: That the Master Distribution Agreement prescribed that the ap....
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.... payment of duty of Customs thereon in terms of provisions of Rule 10(1)(c) of the Customs Valuation (Determination of Price of Imported Goods) Rules, 2007 for the imports made by the Appellant-Importer . (iii) Mis-classification of goods: That MPOS specially D-180 is undisputably a wireless Automatic Data Processing Machines (ADPM) which facilitate payments and hence the same merit classification under Chapter Heading No. 84713090; that even the catalogue of D180 MPOS produced during the argument mentions in the specifications that that machine incorporates, inter alia, Memory, Processor, Display, Keypad, Magnetic Card reader and Smart Card reader; that Memory and, Processor forms Central Processing Unit( CPU), Display forms the Output device and Keypad/Magnetic Card reader/Smart Card reader forms the input device and hence the Machine has the configuration of a full fledged ADPM; that the principle function of the device is automatic data processing and hence despite having some other alternative/complimentary functions like facilitating payments, the goods merit classification under Customs Tariff Heading 84713090 as ADPM in terms of Note 3 of Section XVI of Schedule I ....
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....ssued by M/s Pax Technology Limited, Hong Kong would have attracted special valuation provisions; that consignment covered under Bill of Entry No. 6221058 dated 24.07.2014 was also stopped clearance for want of WPC and SVB Order; that the Appellant-Importers were not in possession of any such ETA from WPC at the time of filing the said two Bills of Entry and hence the imports were in contravention of the provisions of EXIM Policy to this effect; that as provisioned under Para 2.2 of the Foreign Trade Policy, all imported goods were also be subject to domestic laws, acts, rules, orders, regulations, technical specifications, environmental and safety norms as applicable to domestically produced goods; that according to General Notes to the Import Policy, the import of Point of Sale devices were subject to BIS certification, however, the Appellant-importers did not have the mandatory BIS certification for the goods imported; that the BIS subsequently produced were not relevant for the goods; that their various acts of omission and commission rendered the impugned goods liable for confiscation under Sections 111(d) and 111(m) of the Customs Act, 1962 and they rendered themselves liable....
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....records, it is clearly evident that she had mis-led the investigations and to hoodwink her role in the whole conspiracy and hence she was the brain behind the conspiracy and therefore, was liable for penal action under Sections 112, 114A and 114AA of the Customs Act, 1962. . (B) Appellant- CHAs : It is mandated on the part of the CHAs to verify the genuineness of the importer, correctness of the documents on the basis of which clearances were sought and also to guide the importer about the statutory requirements especially certification from BIS and WPC; that they filed the Bills of Entry on the basis of documents handed over not by importer but by an unauthorised person Shri Randhir Singh; that they did not take the catalogue from the importer and filed the Bills of Entry on the basis of information provided by Shri Randhir Singh classifying the goods under wrong classification; In case of live Bills of Entry the Appellant-CHA stated that they received the documents from Shri Randhir Singh and filed the documents on the basis of invoice submitted by him and regarding the chapter heading 39269099 under which the goods had been classified in two live Bills of Entry, they st....
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....f Entry on the basis of documents from Shri Kuldeep Singh, Director of M/s VSG Shipping and Logistics Pvt. Ltd.; that they filed Bill of Entry without going through the veracity of the documents and statutory requirement for importation of goods. Thus they acted upon the advice of Shri Kuldeep Singh (Who was working on the direction of Ms. Latha Priyadarshini) without applying their mind and mandatory obligation required for CHA/CB; that it was imperative on their part to guide the importer about the statutory obligation, however, instead of fulfilling the statutory certification for the goods handled by them, they secured clearance thereof; that they acted to help the importer to secure clearance of the impugned goods without statutory WPC and BIS certification for monetary benefits; that by their above-mentioned act of omission and commission, the Appellants-CHAs have rendered the impugned goods liable for confiscation under Sections 111(d) & (m) of the Customs Act, 1962 and thereby they have rendered themselves liable to penalty under Sections 112 and Section 114AA of the Customs Act, 1962; that all the Appellant-CHAs instead of handling the documents/goods/duty payment themselv....
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....mport of the impugned goods on the behest of the director of the import firm, but also personally concerned himself in the clearance of the said goods ; that the Appellants' working partner Shri Rajinder admitted of having generated the forged copies of invoices where he not only lowered the value of the goods under import but also changed the description of the goods in as much as 'Paper Rolls' were added as description in Bills of Entry No. 3526607 dated 09.12.2015, 3346966 dated 23.11.2015, 3141261 dated 03.11.2015, 2763917 dated 30.09.2015, 2121203 dated 03.08.2015 and 2094937 dated 31.07.2015, with an intention that the EDI System would facilitate clearance of the consignments under RMS, where no assessment or examination is generally required by Customs; that the Appellant was aware that even though lesser duty was paid to be paid/and to deposited with the Department, he with his accomplice-partners charged normal duty amount from the importer by creating forged documents and the extra money earned was distributed by the three - the Appellant , Shri Sanjay Kataria and Shri Rajender alias Raju; that he intentionally and maliciously associated himself with the impugned goods, w....
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....e goods which were grossly undervalued, mis-declared to its description and circumvented the mandatory certification from BIS and WPC; that by his above-mentioned act of omission and commission, Appellant Shri Kuldeep Singh rendered the impugned goods liable for confiscation under Sections 111(d) & (m) of the Customs Act, 1962 and rendered himself liable to penalty under Sections 112 and Section 114AA of the Customs Act, 1962. (E) Appellant- Consultant: That the Appellant Shri Rajinder Madhok is a consultant by his experience in the field and he advises the importer/exporter on the issue of related party transaction and SVB matters; that he facilitated the clearance of goods imported vide Bill of Entry No. 7817932 dated 26.12.2014 wherein the goods were mis-declared as 'dummy units'. He admitted that he guided Ms. Latha Priyadarshini to circumvent the issue of 'related party' transactions and SVB registration by suggesting her to show imports on High Sea Sale basis and as he had large cliental, he offered to arrange High Sea Sale of the aforesaid goods; that the importer had agreed to pay Rs. 34,000/- for his services in respect of advising her on executing a High Sea Sale....
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....inal dummy) sample SP-30 Terminal (Mobile payment terminal dummy) sample 90230090 90230090 4 2 20 15 R.U. Imports Exports Pvt. Ltd. 5. 2094937 31/07/ 2015 RMS S-90 48237090 200 8.5 Exim Cargo Service 6. 2121203 03/08/ 2015 RMS Paper Roll D-180 MPOS Terminal (Parts of payment Debit/ Credit Device) 48237090 48237090 1000 Rolls 1000 Rolls .25 2.25 Exim Cargo Service 7. 2763917 30/09/ 2015 RMS Paper Roll Barcode Reader S-90 48237090 48237090 80 40 .25 8.25 Exim Cargo Service 8. 3346966 23/11/ 2015 RMS Paper for printing in payment Debit/ Credit device D-180 Terminal (Part of payment Debit/ Credit Device) 48237090 48237090 50 42 .42 4.5 Exim Cargo Service 9. 3141261 03/11/2015 10 Paper Roll D-180 MPOS Terminal (Part of payment Debit/ Credit Device) 48237090 200 .25 Exim Cargo Service 10. 3239991 13/11/2015 10 D-180 (D- 180 Pin pad is used to connect with the laptop to do the transaction - connectivity via USB port only) 84702900 457 15 Rubal Logistics Pvt. Ltd. 1....
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....arshini with the help of certain other persons made plan to circumvent the provisions of Import Export Policy requirements as well as scrutiny from Special Valuation Branch of the Customs by resorting to mis-declaration of the import consignment of MPOS/POS in connivance of the various persons. These persons are also appellant before us in this matter. We have taken note of the fact that Shri Rajinder Madhok in his statement has categorically mentioned that Ms. Latha Priyadarshini alongwith Shri Sanjeev Sharma has met him and made certain enquiries with regard to formalities pertaining to Special Valuation Branch and in the discussion she has also asked as to how the provisions of Special Valuation Branch can be bye-passed. Thereafter with connivance of several other persons she has mis-declared the basic details of the import consignments including the description of the import consignments. 14. A glance at the table mentioned in the preceding para No. 11 reveals that the MPOS machines were mis-declared as paper rolls/bar code reader and in some of the Bills of Entry the description of import consignment has been given as "S-90 model and paper with printing and payment debit/cr....
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....ne Bills of Entry No. 2094937 dated 31/07/2015 goods have been described only as "S-90" and classified under Customs Tariff Heading 48237090 (which pertains to articles of paper). In the other Bills of Entry also goods have similarly been mis-declared as "paper for printing in payment debit/credit device, paper rolls, parts of plastic (the description given in the live Bills of Entry). 15. The appellant - importer and its Executive Director Ms. Latha Priyadarshini cannot pretend ignorance of such a blatant wrong description of the import consignments of MPOS/POS. We find that the consignments of MPOS were not described correctly even in a single Bill of Entry filed by this importer. Of course the wrong description was adopted as a modus operandi to bye-pass the provisions of the Customs Act, 1962 readwith import-export policy of relevant time which required that consignment of MPOS/POS a No Objection Certificate in the form of ETA (Equipment Type Approval) from the WPC Wing of Department of Telecommunication and registration with Bureau of Indian Standards (BIS) and above all to evade customs duty. 16. Now, we undertake to analyze the findings given in the impugned order-in-o....
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....ic". 18. Thus, we find that the importer/appellant and its Executive Director Ms. Latha Priyadarshini were mis-classifying MPOS/POS consignments in utter disregard to the provisions of Customs Tariff Act and at their own free will and thus they have certainly resorted to mis-declaration and mis-classification of the import consignments with an intent to evade duty and to avoid compliance of other allied Acts as mentioned in preceding paras and thereby making all the import consignments liable for confiscation on this count under Section 111 of the Customs Act, 1962. 19. With regard to the valuation of the import consignments of MPOS/POS, the per unit price declared under various Bills of Entry have varied between U.S. $ 97 per unit to as low as U.S. $ 1.45 per unit for D-180 Model of MPOS. It has been established by the investigations that a 'Master Distribution Agreement' has been signed by the appellant - importer and its Executive Director Ms. Latha Priyadarshini with Pax Technology Ltd. Hongkong on 1 November 2014. Some of the relevant paras of agreement read as follow : "Appendix A shows current transfer prices agreed between the company and the master distribut....
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....a Priyadarshini and the company are not acceptable in the facts and circumstances as well as legally as per the provision of Section 46 of the Customs Act, 1962 of sub-Section (iv) the importer presenting the Bill of Entry is required to subscribe to a declaration as to the truth and contents of Bills of Entry. Since the declarations made by the importer - appellant and its director have been found grossly mis-declared on the counts of description, classification and value of the consignments. Ms. Latha Priyadarshini in her statement dated 19/01/2016 and other statement has admitted the facts of mis-declaration. 21. Thus, we do not find any illegality in the conclusions reached in the impugned order-in-original regarding confiscation of the import consignments, confiscation of customs duty and with regard to imposition of penalty under various Sections of the Customs Act on the appellant importer and its Director Mrs. Latha Priyadarshini. 22. Coming to the role of various Customs House Clearing Agents, we find it appropriate to mention before analyzing the role of individual CHA firms and persons, that every Customs House Agent plays a crucial role in ensuring compliance of p....
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....ons of Section 112 and Section 114AA of the Customs Act, 1962. 23. With regard to the appellant Shri Rajesh Kumar Maikhuri - Managing Director of M/s R.U. Imports Exports Pvt. Ltd. and M/s R.U. Imports Exports Pvt. Ltd., a Customs House Agent (CB firm), it is a matter of record that they have filed one Bill of Entry No. 7817932 dated 26 December 2014 wherein the description of the goods was given as D-200 Terminal (Mobile payment terminal dummy), sample and SP-30 terminal (Mobile payment terminal dummy). The classification of the goods have been done under Chapter 90230090 which covers instruments, apparatus and model designated for demonstration purposes or exhibition, education purpose and unsuitable for its other uses. It is matter of record that during course of examination of subject consignment, the goods were found as not dummy or samples but the same were fully functional MPOS. It is therefore clear that goods were classified by Shri Maikhuri and the importing firm without going into detail about their true nature by referring to the relevant catalogue or product literature and without any documentary evidences. The CHA classified the goods as of dummy nature for exhibit....
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.... MPOS on behalf of the main appellant namely M/s Pax Technologies Pvt. Ltd. The details of the description of the import consignment, their classification and per unit price, as declared in the respective Bills of Entries are given here below :- S. No. B/E No. B/E Date % of exam prescribed Description of goods as per B/E Chapter Heading as per B/E Qty. Impor ted Decla red value (USD) per unit Name of CHA/ CB (M/s) 1. 2094937 31/07/ 2015 RMS S-90 48237090 200 8.5 Exim Cargo Service 2. 2121203 03/08/ 2015 RMS Paper Roll D-180 MPOS Terminal (Parts of payment Debit/ Credit Device) 48237090 48237090 1000 Rolls 1000 Rolls .25 2.25 Exim Cargo Service 3. 2763917 30/09/ 2015 RMS Paper Roll Barcode Reader S-90 48237090 48237090 80 40 .25 8.25 Exim Cargo Service 4. 3346966 23/11/ 2015 RMS Paper for printing in payment Debit/ Credit device D-180 Terminal (Part of payment Debit/ Credit Device) 48237090 48237090 50 42 .42 4.5 Exim Cargo Service 25. A glance at the details given above, makes a revelation of the extent of the ....
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....port Policy which included the BIS and WP&C certification. 26. We are in full agreement with the findings of the Original Adjudicating Authority and, therefore, uphold the imposition of penalty under various sections of the Customs Act on CHA firm M/s Exim Cargo services, Shri Kishan Singh Dhapa and Rajindra Prasad. We also recommend to the Commissioner of Customs (Licencing Authority) to take appropriate action against all the three above-mentioned appellants under the Customs Broker Licence Regulations. 27. Coming to the appellants Shri Rajiv Kumar Sharma, Shri Hari Kishan, Shri Kamal Nath Roy and M/s Rubal Logistics Pvt. Ltd. - Customs House Agent (Customs broker), it is a matter of record that M/s Rubal Logistics Pvt. Ltd. has filed a Bill of Entry No. 3239991 dated 13 November 2015 wherein the description of the goods has been declared as D-180 (D-180 pinpad is used to connect with the laptop to do the transaction - connectivity via USB port only). The value of the goods has been declared as U.S. $ 15 per unit. The investigations revealed that under the Bill of Entry No. 3239991 dated 13 November 2015 a consignment of D-180 MPOS was imported by the importer - appellant a....
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....t Debit/ Credit Device D-180 Terminal (Part of payment Debit/ Credit Device) 48237090 48237090 1000 Rolls 4600 pcs. .23 1.45 Prompt Air & Sea Cargo Pvt. Ltd. 29. A perusal of the above-mentioned details makes an interesting revelation that the D-180 Model of Mobile Point of Sale (MPOS) equipment has been classified as a product of paper by classifying the same under sub-heading 48237090 of the Customs Tariff Act and declaring the value as U.S. $ 1.5 per unit and U.S. $ 1.45 per unit. We are of the opinion that this has been done deliberately for uterior motives. The facts here are also same that the Customs House Agent and its Executive Shri Kamal Kumar Sukhramani had filed the Bills of Entry without referring to the necessary product catalogue and technical literature. It has also been admitted by Shri Kamal Kumar Sukhramani, a F Card Holder of Customs Clearing firm M/s Prompt Air & Sea Cargo Pvt. Ltd., in his statement dated 26 February 2016 that he has not referred to any catalogue or produced literature and he never met the importer and filed the Bill of Entry on the basis of documents handed over to him by Shri Randhir Singh. We find that the classif....
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....ovisions of the Customs Act under Section 112 and 114AA and we are in agreement with the findings of the Adjudicating Authority also. 31. So far as the role of Shri Sushil Kumar Mishra is concerned, it is an admitted fact that he associated himself in creation of forged documents, such as, invoices etc. and was involved in arranging the clearance of the goods on the basis of the mis-declared facts. Shri Sushil Kumar Mishra in his statement dated 16 January 2016 has admitted that he was fully aware about lot of manipulations with regard to clearance of consignment of M/s Pax Technologies as generally the customs clearance agency charges are in the range of 2000 to 2500 per consignment, however, in case of M/s Pax Technology an amount of Rs. 60,000/- to Rs. 70,000/- was being paid to them. He was working in connivance with Shri Sanjay Kataria and one Shri Raju and all of them were forging invoice and other documents. The investigations have brought out the categorical role played by Shri Sushil Kumar Mishra that he was aware and participated in mis-declaration of description as well as the value of import consignment for and on behalf of the importer - appellant. We do not find an....