TaxTMI 
TaxTMI 
2021 (12) TMI 294
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.... 13,00,000/- u/s 112(a) of the Customs Act, 1962. Rs. 23,00,000/- u/s 112(a) of the Customs Act, 1962. 2. Brief facts of the case are that several importers located in India were importing confectionary items from the appellant - M/s Seville Products Limited, Dubai and M/s Kelsen Group A/S, Denmark, were resorting to large scale under invoicing and mis-declaration of transaction value, as well as Retail Sale Price (RSP) of the goods to evade customs duty. The differential amount pertaining to the suppressed value was being remitted by the importers to the overseas suppliers through non-banking channels. As the issue in both the appeals is common and relates to the same appellant, these are taken up for hearing and disposal. For the sake of convenience, we take the facts of appeal No. C/A. No. 52105/2019. 3. Revenue took up investigation and inspected the premises of one M/s S.R. International (SRI in short) who are importing confectionary from the appellant, having their office at Model Town, Delhi, a partnership firm having one of the Partners as Shri Kewal Takkar. Also the office premises of Shri Prakash Menon who was the Indian Representative of the exporter - M/s Seville P....
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....A/S, Denmark. On being confronted with the statement of account, Shri Kewal Takkar in his statement recorded on 02.06.2014 admitted that the value reflected in the statement of account was actual value. Thus, the actual value as per the statement of account is the transaction value of the goods imported by M/s SRI and others detailed in Annexure "A‟ to "C‟ to the show cause notice. 5.1 Further, it appeared that appropriate custom duty in respect of goods imported and cleared was short levied by reason of collusion, wilful mis-statement and suppression of facts and hence the same was recoverable by invoking the extended period of limitation under Section 28 of the Customs Act, alongwith interest. It appeared that M/s SRI has suppressed the value resulting into short payment of custom duty of Rs. 42,69,464/-. 5.2. Further, it appeared that the importer - M/s SRI was required to declare and affix the correct RSP on the confectionary goods imported by them, in terms of Legal Metrology (Packaged Commodities) Rules, 2011 read with Export Import policy and ITC (HS) read with para 2.2 of the Foreign Trade Policy. However, admittedly, the RSP was not affixed on any of the pack....
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....k (Group company) have also made similar admission of colluding in suppressing the transaction value for exporting goods to India imported by M/s SRI and others. Further, they have admitted the similar role in collecting the differential value in cash from the importer(s) and have similarly submitted the copies of the invoices and statement of account through their Indian representative - Shri Kaivan Balsara and Srikant Panda. Accordingly, show cause notice dated 16.06.2014 was issued proposing to reject the transaction value and for re-determination of value as per the actual transaction value and further demand of differential customs duty alongwith interest and proposal to impose penalty on M/s S.R. International. Further, penalty was also proposed under Section 112(a) of the Act on M/s Seville Products Limited (appellant), M/s Kelsen Group A/S, Denmark and Shri Kaivan Balsara, and others. 7. Under similar facts and circumstances in the other appeal, show cause notice dated 11.08.2014 was issued by the DRI, Mumbai Zonal Unit, Mumbai proposing to reject transaction value and re-valuing the same as per the actual value. Further, demand of differential duty alongwith interest and ....
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....an active role by colluding with the importers in India in evasion of customs duty, payable in India. Further, the appellant company have knowingly colluded and thus abetted with the importers in India in suppressing the transaction value for evasion of custom duty. The appellant have knowingly provided two sets of invoices and thus have abetted in violation of the provisions of Section 111 and other provisions of the Customs Act, rendering the goods liable for confiscation and thus penalty under Section 112(a) of the Customs Act was attracted. 12. So far the issue of jurisdiction raised by the appellant, it is held in the impugned order that the appellant was having their representative in India - Sh. Prakash Menon, and the appellant was actively present in India through the said agent, and have colluded with the importers in evading the customs duty. The appellant company booked orders from the Indian importers and further co-ordinated with the exporting company in Dubai right from the stage of booking orders and thereafter collecting the differential amount of transaction value. It has been further found that the appellant company was active in India through its representative ....
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....mmissioner (Appeals) have erred in not following the Larger Bench ruling in the case of S.K. Colombowala (supra) but have erroneously relied on the ruling in K.I. International vs. CC - 2012 (282) ELT 67 relying on the ruling of Hon‟ble Supreme Court in S.P. Chengalvaraya Naidu vs. Jagannath (1994) 1 SCC 1. Further reliance is placed on subsequent ruling in the case of CC vs. Mahendra Kumar Dharewala -2016 (340) ELT 727. Further, urges that penalty cannot be imposed on the appellant in terms of Section 147(3) of the Customs Act. Reliance is placed on the ruling of this Tribunal in Collector vs. Jain Exports -1990 (46) ELT 147 (Tri.), wherein it has been held that the scope of Section 147 cannot be extended beyond the Customs Act. Further, urged that penalty is not imposable on the appellant under Section 112(a) of the Customs Act as the goods have already been cleared for home consumption. Further, urges that imposition of penalty under Section 112(a) is incorrect since the appellant did not do any act or omission in respect of the goods rendering them liable to confiscation under Section 111 of the Customs Act. Further, reliance is placed on the ruling of Mumbai Bench of thi....
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.....) and also some other judgements. It is further urged that in any view of the matter the case of conspiracy and collusion is not made out and hence penalty for abetment is not imposable under Section 112(a) of the Customs Act. 15. Opposing the appeal, learned Authorised Representative for the Revenue urges as follows:- i) The submissions made by the appellant that the appellant does not have any business operations in India and is not undertaking any commercial activity within India at any point of time is factually incorrect. Though the appellant company is registered in Dubai, it is operating its business through its agent, an employee (Market Development Manager) Sh. Prakash Menon by attracting customers through various schemes including larger profits in the form of short levy of customs duty by submitting forged invoices and remitting of the balance payment through hawala transactions. ii) Another submission that none of the alleged acts have been committed by the appellant within the Indian territory is a misleading statement, as the offence has been done in the territorial jurisdiction of India, one in the form of abetment by act of collusion by submitting forged invoi....
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....he appellant, through her employee, who are in relation of the Principal and Agent, had committed an offence of abetment/ collusion with the importer within the territory of India by way of supplying forged invoices an Indian soil to help the importer in evading customs duty. The appellant and the aforesaid employee were also involved hawala transaction for the balance payment to them, apart from the one made by banking channels, with the aid and support of their agent, (employee), Sh. Prakash Menon, officially located in Mumbai, India. C) To clarify the above the Finance Act, 2018 has amended Section 1(2) w.e.f. 29.03.2018, which is reproduced as below: Section 1. Short title, extend and commencement- "(1) This Act may be called the Customs Act, 1962. (2) It extends to the whole of India [and, save as otherwise provided in this Act, it applies also to any offence or contravention thereunder committed outside India by any person.] (3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. D) Sub section 2 reads as it applies also to any offence or contravention thereunder committed outside India by any person....