TaxTMI 
TaxTMI 
2024 (4) TMI 380
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....339 was filed with M/s. Aromatech as the importer. On examination, the goods were found to be in excess of the declaration in the Bill of Entry and there were also goods which were not declared at all in the Bill of Entry. Certain essential details such as the details of the importer, the exporter and the maximum retail price [MRP] were also missing on the cartons. 3. Further investigation also showed that 15 Bills of Entry had been filed prior to this Bill of Entry by M/s. Aromatech and in all these cases, the appellant had availed the benefit of Customs exemption notification no. 12/2012 dated 17.3.2012 without following the conditions of the notification. After recording statements and completing the investigation, a Show Cause Notice [SCN] dated 05.03.2015 was served on Umesh Kumar and Rajat Arora proposing recovery of differential duty under section 28(1) for the imports made in all the Bills of Entry along with interest and proposing to impose penalties on Umesh Kumar and Rajat Arora. 4. By the order-in-original dated 25.2.2016 [OIO], the Commissioner confirmed the proposals in the SCN. This order was assailed by M/s Aromatech before this Tribunal in Customs Appeal no. ....
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....efunded. For the goods imported through these Bills of Entry during the relevant period, exemption notification no. 12/2012 was available which exempted the goods from payment of SAD subject to the condition that the importer declares the state of destination where the goods are to be sold after import and his VAT registration number. The importer declared the State as UP and provided its VAT registration number. However, from the VAT returns filed with the UP Government authorities, it was evident that the importer had not paid any VAT at all. Thus, the importer had evaded paying SAD declaring that the goods will be sold in UP but did not pay VAT in UP. 9. Repeated summons were sent to M/s. Aromatech but it did not respond. Even Rajat Arora also did not respond to the summons dated 31.12.2014 and 13.1.2015. 10. M/s. Aromatech, filed a Writ Petition in the Delhi High Court on 9.1.2015 seeking provisional release of the seized goods and the High Court directed Umesh Kumar, the proprietor to appear before the Customs Officer on 4.2.2015 and further directed the department that if any request for provisional release is submitted, to dispose of that application within 10 days aft....
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.... penalty of Rs.61,65,224/- (Rupees sixty one lakh sixty five thousand two hundred and twenty four only) under section 114A of the Customs Act, 1962 on M/s Aromatech for the duty short paid by reason of collusion/wilful mis- statement/suppression of facts for their various acts of omission and commission as detailed above. (vii) Imposed penalty of Rs. 10,00,000/- (Rupees ten lakhs only) on Rajat Arora under section 112(a) of the Customs Act, 1962." 13. On appeal by M/s Aromatech, this Tribunal passed Final Order dated 9.5.2017 remanding the matter to the original authority with a direction to provide relied upon documents to him. The appeal by Rajat Arora challenging the penalty of Rs. 10,00,000/- imposed on him was initially dismissed and later restored. 14. Pursuant to the Final Order, the impugned denovo OIO was passed by the Principal Commissioner. It deals with only the part of the order insofar as M/s. Aromatech and its proprietor Umesh Kumar were concerned. The operative part of this order is as follows: "(i) I reject the declared assessable value of Rs. 29,59,398/- involving duty of Rs. 6,66,986/- on the goods imported vide Bill of Entry 6807339 dated....
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.... us in this appeal is to set aside the impugned denovo OIO dated 4.1.2018. The main contention of Umesh Kumar is that he had only lent his IEC to Rajat Arora and was in no way concerned with the imports at all and therefore, the impugned order needs to be set aside. The specific grounds listed in the appeal are: (a) The impugned order is bad in law, unjust and unfair. (b) Rajat Arora was the real importer and he (Umesh Kumar) had sought his cross examination which was allowed on 5.12.2017 and 15.12.2017 but Umesh Kumar had not appeared. Next time on 29.12.2017, the Rajat Arora's advocate had not appeared. The impugned order was passed without offering any further cross examination and hence should be set aside; (c) He neither imported the goods nor signed any of the Bills of Entry as can be verified from the records; (d) He had not even filed the Writ Petition before the Delhi High Court and was also unaware of the order passed by the High Court but on being informed by Rajat Arora, he had appeared before the Customs officer on 4.2.2015. (e) He had also given his bank details to Rajat Arora who has been operating it and he was not even a....
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.... 23. The entire basis of arguments of Umesh Kumar in this appeal before us is that he is in no way concerned with the imports or the Writ Petition or the Bills of Entry. Insofar as appearing before the Customs Officer on 4.2.2105 is concerned, he says that he was told by Rajat Arora that there was an order of High Court and he had to appear and therefore, he did. 24. We find no force in these submissions. If these submissions have to be accepted, it would mean that: a) The Oath Commissioner who had attested his affidavit filed before the High Court had falsely verified the signature although it was not made before him by Umesh Kumar; b) M/s. Gandhi and Associates, the law firm, without even being hired by Umesh Kumar, somehow learnt about his case and filed a Writ Petition before the High Court; c) Mr. Gandhi, Mr. Ritesh Chaudhary and Mr. Mayank Singh, learned advocates, without being engaged by Umesh Kumar, had appeared before the High Court and made submissions including a statement that his authorised representative will appear before the Superintendent of Customs on 4.2.2015 at 11 AM; d) Umesh Kumar, without knowing anything about the c....
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....as directed to put up the file of Shri Umesh Kumar/Aromatech which was already disposed and allow its inspection to both parties. Adjourned to 9.7.2018. 4 9.7.2018 Learned DR was directed to obtain a copy of the re-adjudication order and also provide a copy to Shri Rajat Arora or his counsel. Adjourned to 30.7.2018. 5 30.7.2018 Directed to tag this appeal with the appeal no. C/51578/2018 filed by Shri Umesh Kumar after re-adjudication and list on 21.8.2018. 6 21.8.2018 Learned counsel for the appellant sought an adjournment. Adjourned to 27.9.2018. 7 27.9.2018 Adjourned to 10.10.2018. 8 10.10.2018 Adjourned to 17.10.2018 Top of the Board. 9 23.5.2019 Listed. Learned counsel sought an adjournment. Adjourned to 2.7.2019. 10 2.7.2019 Listed. Learned counsel sought an adjournment. Adjourned to 13.7.2019. 11 13.8.2019 Listed. Learned counsel sought an adjournment. Adjourned to 22.8.2019. 12 22.8.2019 Listed. Learned counsel sought an adjournment. Adjourned to 24.9.2019. 13 24.9.2019 Listed. Learned counsel sought an adjournment. Adjourned to 5.11.2019. 14 5.11.2019 Listed. Learned counsel ....
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....unity. Even on this 36th listing of the appeal, none appeared for the appellant. Needless to say that 36 adjournments is more than a reasonable opportunity of being heard given to the appellant. 28. The directions of the Supreme Court in Balaji Steel Re-rolling Mills vs Commissioner [2014 (36) S.T.R. 1201 (S.C.) ] is that CESTAT should decide the matter on merits even if the counsel is not present when the appeal is taken up for hearing. Relevant portion of this judgment is as follows: "13. Applying the principles laid down in the aforesaid case to the facts of the present case, as the two provisions are similar, we are of the considered opinion that the Tribunal could not have dismissed the appeal filed by the appellant for want of prosecution and it ought to have decided the appeal on merits even if the appellant or its counsel was not present when the appeal was taken up for hearing. The High Court also erred in law in upholding the order of the Tribunal." 29. This matter was listed on 12.10.2023 and the submissions of the learned authorised representative for the Revenue were heard and the records were examined and the order was reserved. Thereafter, on 30.12.202....
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....2(a) as the penalty imposed is baseless and without facts." 32. As far as the rest of the order qua M/s. Aromatech is concerned, it was already remanded to the original authority who passed the de-novo order the challenge against it has been dealt with in Customs Appeal No. 51578 of 2018 above. 33. We, therefore, only confine ourselves to deciding if the penalty under section 112(a) imposed on Rajat Arora can be sustained or not in the light of the submissions made in this appeal. 34. Learned authorised representative supports the impugned order and the imposition of penalty on Rajat Arora under section 112(a). 35. The first submission of Rajat Arora is that he had nothing to do with the business of M/s. Aromatech and that he was merely a freight forwarder and that he had received the documents from the proprietor of M/s. Aromatech (Umesh Kumar) and submitted them for customs clearance. 36. We find from the records, when the goods were examined by the Customs and discrepancies were found, they were seized under a panchnama under section 110 in the presence of Deepak, G card holder of CHA M/s. Venstar Shipping Services and two independent witnesses. Quite logically, s....