TaxTMI 
TaxTMI 
2025 (10) TMI 503
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....wala is one of its four Directors. The said Mohd. Yasin Latiwala is also a Director of Bombino Worldwide Inc. USA. The appellants are clearing import/export courier consignments on behalf of its customers. 3. Acting on intelligence that M/s.Smashing Traders Pvt. Ltd. are indulging in mis-declaration and undervaluation of their imports through courier mode, their live import consignments covered under Courier Bill of Entry dated 13.9.2014 containing 22 Air Way Bills(AWB) were detained by the Courier Cell of Customs for detailed examination. The said Bill of Entry was filed by the appellant herein i.e. M/s. Bombino Express Pvt. Ltd. The invoices therein were issued by M/s. NY Magnum Distributor Inc, New York, USA to M/s. Smashing Traders Pvt. Ltd. The goods/consignments under those 22 AWBs were examined and it was discovered that the actual goods inside these packages were different from what was declared in AWBs and some packages also contained invoices showing actual value of the goods establishing that the goods were undervalued. The actual value of the goods were assessed at Rs.11.07 lakhs as against the declared value of Rs.1.07 lakh. 4. Detailed search and comprehensive i....
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....re of the actual description and value of the goods which they allegedly mis-declared to the customs authorities during clearance. 7. After investigation, a show cause notice dated 3.5.2016 was issued to M/s. Smashing Traders Pvt.Ltd. and Mr.Kuo Leong, proposing rejecting the assessable value of the goods imported vide courier bill of entry dated 13.9.2014 as well the past 413 AWBs, proposing demand of differential customs duty of Rs.21,93,892/- from M/s. Smashing Traders and Kuo Leong alongwith interest and penalty under various provisions of Customs Act, 1962. And proposing penalties on M/s. Bombino Express Pvt. Ltd. u/Ss. 112(a), 112(b) and 158(2)(ii) of Customs Act, 1962, u/s. 112(a) & 114AA ibid on Mr.Mohd. Yasin Latiwala, Mr.Mohtashim Bookwala and NY Magnum Distributors Inc. USA respectively and u/s. 114AA ibid on Mr. Naresh Dhondiyal and Mr. Uday Hate respectively. 8. During the pendency of adjudication proceedings, M/s. Smashing Traders Pvt. Ltd., Mr. Kuo Leong i.e. the importers, Mr. Naresh Dhondiyal and Mr. Uday Hate approached the Settlement Commission. The Settlement Commission vide Order dated 5.4.2016 in the matters of M/s. Smashing Traders Pvt. Ltd & Mr. Kuo Le....
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....oods, learned counsel clarified that it was a purely commercial arrangement for which Mr. Latiwala was getting interest @2.5%, entirely unrelated to import declarations. Regarding the receipt of Rs.35 lakhs from the importer during the month of August, 2024, learned counsel explained that Rs.22 lakhs were received as reimbursement of expenses due from the importer while the balance Rs.13 lakhs were towards advance payment. In support of his submission learned counsel placed on record a copy of ledger account showing break up of Rs.22 lakhs. So far as the allegation regarding invoices found inside the cartons are concerned, it is the contention of learned counsel that those were not within appellant's knowledge, as the invoices were directly sent by the exporter/supplier to Kuo Leong of M/s. Smashing Traders- importer, who then provided it to the appellants for filing the courier Bills of Entry. 12. After giving the entire background, learned counsel submits that no case has been made out by revenue to impose penalties against the appellants either u/s. 112 (a) or (b) or 114AA ibid and prayed for setting aside the impugned order to allow the appeals. Additionally, it was asserted....
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.... of section 28 and the interest payable thereon under section 28AA is paid within thirty days from the date of communication of the order of the proper officer determining such duty, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent of the penalty so determined; (iii) in the case of goods in respect of which the value stated in the entry made under this Act or in the case of baggage, in the declaration made under section 77 (in either case hereafter in this section referred to as the declared value) is higher than the value thereof, to a penalty [not exceeding the difference between the declared value and the value thereof or five thousand rupees], whichever is the greater; (iv) in the case of goods falling both under clauses (i) and (iii), to a penalty not exceeding the value of the goods or the difference between the declared value and the value thereof or five thousand rupees, whichever is the highest; (v) in the case of goods falling both under clauses (ii) and (iii), to a penalty not exceeding the duty sought to be evaded on such goods or the difference between the declared value and the value the....
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....e entire operation was transferred to a different entity namely Rabale office. Significantly in his statements u/s.108, Kuo Leong never mentioned appellant's involvement in under-invoicing, instead he completely exonerated the appellants, which is very relevant for deciding these appeals. 18. Penalty u/s. 112 ibid can be imposed only when evidence available on record indicate that the appellants did or omitted to do an act rendering the goods liable for confiscation or abetted such act or knowingly dealt with such goods. Merely filing courier bills of entry based on importer's documents cannot constitute abatement by itself. Penalty u/s. 112 (a) ibid, as the act itself stipulates, cannot be imposed if the parties establish that the contravention has taken place without their knowledge or despite exercise of all due diligence to prevent such contravention. Section 114AA ibid provides for imposition of penalty on a person who knowingly or intentionally make, sign, uses or causes to be made any declaration, statement or documents, which is false or incorrect in any material particular in the transaction of any business under the Act. Evidently, if any person knowingly made or used ....
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....obligation to check for prohibited items inside the packets, which they discharged. It is not the case of the department that any prohibited item had been sent or cleared in the packets under consideration. Significantly, if the appellants were complicit in smuggling, they would not have left original invoices inside the consignments, which were later recovered by the customs department. No evidence has been produced for establishing under-valuation by the appellants. Revenue has failed to produce sufficient evidence establishing that M/s. Bombino Express-appellant was aware about the mis-declaration or undervaluation by the importers and hence the ingredients for the imposition of any penalty on M/s. Bombino Express does not stand scrutiny. 21. So far as the penalties imposed on Appellant Yasin Latiwala u/Ss.112 & 114AA are concerned, the evidence available on record does not indicate that the appellant had abated or had prior knowledge about the undervaluation or misdeclaration in any way. The e-mail sent by Latiwala to his employees, relied upon by authorities below, merely suggested: "Please try save maximum duty and most efficient and economy service for end delive....