TaxTMI 
TaxTMI 
2024 (8) TMI 1764
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....d No 4908143 dated 16.09.2019 under Section-111(m) of the Customs Act, 1962. As the said goods had already been auctioned and the amount of Rs 73,13,133/- (Rupees seventy three lakhs thirteen thousands one hundred thirty three only) was realised as sale proceed, I order to appropriate the same under Section 126 of the Act ibid; ii) I impose a penalty of Rs. 12,00,000/- (Rupees twelve lakhs) on M/s Raghunath Laxminarayan, 51/27-A, Ramganj, Kanpur, under Section 112(b) of the Customs Act, 1962; iii) I impose a penalty of Rs.50,00,000/- (Rupees fifty lakhs) on Shri Saurabh Maheshwari, Authorised Representative, M/s Raghunath Laxminarayan, House No. 30, Anandpuri, Kanpur, under Section 114AA of the Customs Act, 1962; iv) I impose a penalty of Rs.50,00,000/- (Rupees fifty lakhs) under Section 114AA and Rs. 12,00,000/- (Rupees twelve lakhs) under Section 112(b) of the Customs Act 1962 on Shri Kush Agarwal, Director, M/s Padam Parmeshwari Ventures Pvt. Ltd., D-122, Bulandshahar Road Industrial Area, Ghaziabad. (2) DRI/LZU/CI/26/INT-14/bN/2019 DATED 28.09.2020 IN RESPECT OF M/S B.N.INTERNATIONAL, KANPUR & OTHERS i) I order for confiscation of th....
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.... (4) ORDER IN RESPECT OF SEIZED DRY DATES OF M/S B.N.INTERNATIONAL KANPUR & M/S SHAKTI TRADERAS, GORAKHPUR :- As the total seized dry dates i.e 2,47,500 kgs ( 1,10,000 Kgs of M/s B.N. International, Kanpur and 1,37,500 kgs of M/s Shakti Traderas, Gorakhpur ) had already been e-auctioned and a total consolidated amount of Rs 1,95,77,555/- (Rupees one crore ninety five lakhs seventy seven thousands five hundred and fifty five only) was realised as sale proceed, I order for appropriation of the same, proportionately,in respect of both these Noticees, under Section 126 of the Act ibid; 1.2 Early hearing applications filed by Appellant Shri Kush Agarwal in three appeals filed by him i.e Appeal No C/70270, 70271 & 70272/2021 have been allowed vide Miscellaneous Order No 70061 to 70063/2021 dated 18.112021. 1.3 It has been informed by the registry Note 17.01.2022 that against the same order in original, three more appeals namely C/70199/2021, C/70227/2021 and C/70228/2021 and vide order sheet dated 25.0102022, bench directed as follows: "3. Keeping in view the said submissions and to avoid the multiplicity of decisions, registry is directed to do the needful and lis....
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....ination, the said goods are of "INDIAN SUB CONTINENT". Politically, the Indian subcontinent includes all or part of Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka, whereas UAE is the part of Arabian Peninsula . 2.5 Point no. 2.2.1 (4) of Chapter 2 of the Food Safety and Standards (Packing and Labelling) Regulation 2011 issued by FSSAI provides that "Label in pre- packaged foods shall be applied in such a manner that they will not become separated from the container.' During the course of examination, it was noticed that a similar type of mode of packing were adopted by all three importers and each bag of containers was found stapled with a slip containing details of exporter & importer gross weight, net weight country of origin and FSSAI No., which can easily be separated from such packaging bags. Hence, it was found that the provisions of Food Safety and Standards (Packing and Labelling) Regulation, 2011 were not followed properly on the packaging bags of the said goods by all three importers. 2.6 During the course of investigation, statements under Section 108 of the Customs Act, 1962 of various person including, Shri Saurabh Maheshwari Authorised re....
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....ders, Sahebganj. Gorakhpur (ii) Shri Vikas Kumar Gupta, Authorised Representative of M/S Shakti Traders (iii) Sri Akash Kumar Gupta, Sahebganj Gorakhpur (iv) Shri Kush Agarwal, Ghaziabad 4895246 Dated 13.09.2019 63,77,246 1,77,03,235 The three importers & Shri Saurabh Maheshwari, Shri Bijendra Narayan Rai, Akash Gupta, Vikas Gupta & Shri Kush Agarwal were required to show cause as to why :- (i) Seized Dry dates of three importers as detailed in Table (A) should not be confiscated under Section 111(m) of the Customs Act, 1962? (ii) Penalty should not be imposed upon M/s Raghunath Laxminarayan, Ramganj, Kanpur, M/s B.N. International, Kanpur & M/s Shakti Traders Gorakhpur under Section 112 (a) and/or 112(b) of the Customs Act 1962? (iii) Penalty should not be imposed upon Shri Saurabh Maheshwari, M/S Raghunath Laxminarayan, Ramganj, Kanpur under Section 114 AA of the Customs Act 1962? (iv) Penalty should not be impose upon, Shri Bijendra Narayan Rai, Vikas Gupta & Akash Kumar Gupta under Section 112 (a) & /or 112(b) and 114AA of the Customs Act 1962? (v) Penalty should not be imposed upon Shri Kush Agarwal under Sectio....
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....a situation the Court could only dismiss the appeal for default, has been held erroneous by a three Judge Bench of this Court in Bani Singh and Ors. v. State of U.P. - 1996 (4) SCC 720. A.M. Ahmadi, CJ, speaking for the Bench, has stated the legal position thus : "The law clearly expects the appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial Court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial Court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. Therefore, with respect, we find it difficult to agree with the suggestion in Ram Naresh Yadav case (AIR 1987 SC 1500) that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non-prosecution". 3.3 We have heard Shri Santosh Kumar, Authorized Representative for the revenue. 3.4 Arguing for his client, Shri Kamaljeet Singh, submitted that: &....
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....garding country of origin was not produced for cross-examination. In view of the above factors, no reliance can be placed on the expert opinion obtained from M/s. Atul Rajasthan Date Palms Ltd. ⮚ Impugned order in 'Discussions and Conclusion' part of the states that in the Export (Customs) Declaration dated 25.08.2019, in column 24, the country of origin is mentioned as 'PK'. This factually in incorrect. The document relied upon in the show cause notice is dated 20.08.2019 and not 25.08.2019 (RUD 48 Refer page 30 of show cause notice). In Column 24 of this document i.e. Export (Customs) Declaration only mentions the words 'AE' which stand for 'not for local sale' i.e. the goods are export goods. The words 'PK" are not mentioned in column 24 of this declaration or in any other part of this Declaration. Hence the finding in the impugned order is not sustainable 3.6 Learned authorized representative reiterates the findings recorded in the impugned order. 4.1 We have considered the impugned order along with the submissions made in the appeal and during the course of arguments. 4.2 Before we proceed to consider the issue we wo....
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....in reference to their respective Show Cause Notices. 1. SCN NO :- DRI/LZU/CI/26/IN-14/RL/2019/10215 dated 28.09.2020 M/s Raghunath Laxminarayan, Kanpur through their Shri S. A. Khan submitted a reply dated 18.02.2021 (during last opportunity of Personal Hearing ) alongwith its enclosures. 2. SCN No. :- DRI/LZU/CI/26/IN-14/BN/2019 dated 28.09.2020 Shri B. N. Rai, Prop M/s B. N. International Kanpur, appeared for virtual hearing on 23.12.2020 and presented the version on behalf of him and his firm (both Noticees). 3. SCN NO :- DRI/LZU/CI/26/INT-14/SHAKTI RADERS/2019 DT, 28.09.2020 :- M/s Shakti Traders, Sahebganj, Gorakhpur, Shri Akash Gupta & Shri Vikas Gupta, through their authorized counsel Shri Raghvendra Pratap Singh submitted a reply dated 02.01.2021. Shri Kush Agarwal is common Noticee in all three Show Cause Notices, but neither he nor any one on his behalf appeared during all opportunities of Personal Hearings. However, later on his counsel Shri Kushal Miglani, submitted his defense replies in respect of all three Show Cause Notices. In this connection it is submitted that the major points of defence reply received on behalf of th....
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....tul Rajasthan Date Palms Limited vide letter dated 11.10.2019, in respect of all three samples of these importers reported that on the basis of physical examination, the said goods is of "INDIAN SUBCONTINENT". In this regard it is evident that politically, the Indian subcontinent includes all or part of Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka, whereas UAE is the part of Arabian Peninsula consisting of the countries - Yemen, Oman, Qatar, Bahrain, Kuwait, Saudi Arabia and the United Arab Emirates. Hence the documents filed by the petitioner before the customs authorities stating that the said dry dates imported by them are of UAE origin appeared false. (II) STATEMENTS OF RELATED PERSONS INCLUDING THE IMPORTERS, ALL RECORDED UNDER SECTION 108 OF THE CUSTOMS ACT 1962 :- I find that all the importers in these three cases, and other related persons like Shri Anil Agarwal, Shri Chandan Chaudhary, Shri Manoj Bansal etc, in their respective statements, all recorded under Section 108 of Customs Act 1962, before the Officers of DRI, have categorically exposed the modus operendi adopted by them in this case for the import of dry dates in connivance ....
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....o know that Dry dates had been imported into India from Pakistan in the past, but it is closed now due to imposition of 200% of Customs duty but, import of Dry dates in India was taking place in unlawful manner; that Shri Kush Agarwal assured him that though Dry dates had been procured by him from Pakistan, but all the import documents including C00 (certificate of origin) relating to the import consianments of said Dry dates would be issued from UAE and there would be no problem in customs clearances of the said goods and the said goods would be supplied on credit basis ; that on being satisfied, he finalised the import of one container of Dry dates though ICD Panki, Kanpur in August2019,; that encouraged by this deal, he ( Shri Rai Jasked Shri Kush Agarwal to supply four more containers of Dry dates, which arrived at ICD Panki, Kanpur in the month of September2019; that apart from that, one card was also tagged on each bag containing details viz. name of his firm, Ms B N International, name of M/S GVO Global, FSSAI no. of his firm, quantity of goods etc. These cards were found either stitched or stapled on the bags ; that he found a marking of month & year of production & expiry&....
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...., he forwarded the said documents to Sadab Khan along with his IEC, AADHAAR card, FSSAI certificate etc .; that however, the goods could not be cleared as the same were held up for checking; (ii) SHRI VIKAS KUMAR GUPTA (STATEMENT DATED 10.10.2019) stated that Shri Pradeep, Prop. of M/S New Lal Shahbaj Traders, Pakistan provided him the contact no. of Chandan CHA, of M/S SS MOMMY International Pvt. Ltd., NOIDA and also asked him to restart import of Dry dates, supply of which would be managed by Shri Kush Agarwal, the Owner of M/s GVO Global, UAE and its import documents would be provided by Shri Agarwal; that he imported 05 containers of Dry dates through ICD, Dadri from M/S GVO Global, UAE and thereafter, he again placed orders to Kush Agarwal for the import of Dry dates in another 05 containers through ICD Panki, Kanpur; that on 20.09,2019, he received a call from CHA Sadab informing him that the cards containing details related to exporter, importer, PSSAI no., quantity etc. are found to be stapled on the packaging bags of Dry dates contained in 05 containers at ICD Panki, Kanpur, which is against the provisions of FSSAI So, next day on 21.09.19, he contacted Kush in th....
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....erence between the samples of Dry dates drawn from 05 nos. of containers of Dry dates imported by their firm M/s Shakti Traders from M/S GVO Global FZC through ICD Panki and Dry dates imported by them from Pakistan earlier. (iv) SHRI MANOJ KUMAR BANSAL (STATEMENT DT. 19.11.19) stated that they purchased Dry dates from different parties of Lucknow, Gorahpur, Delhi and Ghaziabad including M/s Shakti Traders, Gorakhpur; that they purchased 7500 Kgs of Dry dates from M/'S Shakti Traders, Gorakhpur in the month of Aug'2019; that in the conversation recorded therein was between him and Shri Akash Gupta, he was exploring the prospects of importing Dry dates and during this process, he came to know that the import of Pakistan origin Dry dates from Pakistan had stopped due to imposition of 200% of Customs duty on Pakistan origin Dry dates; that on getting the information with regard to import of Dry dates by M/s Shakti Tradres, Gorakhpur from UAE, he had the aforesaid conversation with Shri Akash Gupta; that during this conversation, Shri Akash Gupta accepted that the Dry dates imported by them through UAE, is not the produce of UAE, The said goods were being supplied by th....
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....08 nos. of containers in the months of June 19 & August' 19 from M/S GVO Global FZC, UAE was of Pakistan origin ; that before this import, Shri Kush Agarwal discussed the matter with him and told that he has devised a modus operandi for importing Dry dates of Pakistan origin into India by re-routing the said goods through Dubai, UAE & also revealed that he would manage 'Certificate of origin' of the said Dry dates of Pakistan origin issued by the UAE authority and accordingly, the said Dry dates procured from Pakistan would be treated as produce of UAE; that thereafter, Shri Kush Agarwal got prepared all the import documents including Certificate of origin in Dubai, UAE in respect of the said 08 (eight) nos. of containers of Dry dates of Pakistan origin and sent the same to him through courier at the address i.e. D-122, Bulandshahar Road Industrial Area, Ghaziabad, which he provided to CHA firm, M/S SS Mommy International (Pvt .. ) Ltd. Ghaziabad for custom clearance; that he was in contact with Shri Manoranjan Singh and Shri Chandan Chaudhary of M/s SS Mommy International (Pvt .. ) Ltd. since December' 2018 and had also provided the import documents pertaining to o....
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....upta through whatsapp; that in the said printout, the first person is Shri Manoj Bansal, who runs a shop, in the name of Bansal' brothers at Ismailpur, Gorakhpur and the second person is his younger brother, Shri Akash Gupta ; that in the said conversation, it is admitted that Dry dates imported by them is not of UAE origin and the same were supplied from Pakistan. This conversation was also confirmed by Shri Akash Kumar Gupta in his own statement dated 10.10.2019, and by Shri Manoj Bansal in his statement dated 19.11.2019, both recorded under Section 108 of the Customs Act 1962. (V) CONTRAVENTION OF THE PROVISINS OF THE FOOD SAFETY AND STANDARDS (PACKING AND LABELLING) REGULATION, 2011 ISSUED BY FSSAI :- I find that as per the records a major discrepancy was detected by the investigating officer during the course of examination, as each bag of the said 04 containers was found stapled with a slip which contained details of exporter & importer, gross weight, net weight, country of origin, IEC no. and FSSAI No. of importer. This slip was easily separable from such packaging bags in clear violation of the point no. 2.2.1 (4) of Chapter 2 of, which provides that "....
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....Transit In - FZ Transit Out - FZ Transit In from GCC and other Emirates FZ and GCC Local Market - FZ Transit between Dubai based FZ. FZ Transit Out' is defined under Para 15.12.3 as under: 15.12.3. FZ Transit Out "Export of goods stored in the free zone to the rest of the world is cleared on this declaration against deposits which is refunded on production of proof of export. Even if the goods are exported directly from the free zone without paying any deposits, the exporter must submit the proof of export failing which customs will charge a penalty of %61 0 of the value of goods. Considering the above customs procedures pertaining to Dubai Customs (UAE), regarding export of goods out of free zones, it appeared that FZ Transit Out declaration is applicable in those cases only, where a Free Zone Company (i.e. FZ Company) imports goods from a third country for its subsequent export to another country. The said provisions imply that the containers in respect of which FZ Transit Out declarations have been filed, originate from a third country and thereafter, move to the place of transit i.e. Dubai from where th....
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.... origin Dry dates. (VII) FAILURE TO COMPLY WITH THE ONUS PLACED ON HIM FOR SELF- ASSESSMENT :- I would like to draw the attention towards Section 17(1) of the Customs Act, 1962 reproduced as under :- "Assessment of duty : (1) An importer entering any imported goods under Section 46, or an exporter entering any export goods under Section 50, shall, save as otherwise provided in Section 85, self- assess the duty, if any, leviable on such goods." In this connection, I observe that the importers had failed to comply with the onus placed on him relating to self- assessment and has not correctly declared the classification and exemption notification in respect of the impugned goods as discussed in the preceding paras. Thus, I find that the same was a deliberate attempt on the part of the respective importers to evade Customs Duty by misclassification and availing exemption Notfn. Not applicable on the subject goods. Further, reliance is also placed on the ratio of judgement passed by the Apex Court in case of CC vs D. Bhoormull 1983(13) ELT 1546 (SC), wherein it was held, that :- "Department is not required to prove its case with....
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....ovisions of Chapter IVA or of any rule made under this Act for carrying out the purposes of that Chapter have been contravened.] Now, I am taking up the issue as to whether the impugned goods in the subject cases are liable to confiscation or not? 19. I observe that the goods in question have been proposed for confiscation under Section 111(m) of the Customs Act, 1962 which have been reproduced in the preceding paras. Hence the seizure of the aforesaid imported dry dates was based on the reasonable belief that the petitioner mis-declared the country of origin of the imported dry dates and the packing of the imported dry dates is not as per the provisions of Food Safety Regulations. Moreover Shri Saurabh Maheshwari, Shri B.N. Rai, Shri Akash Gupta & Shri Vikas Kumar Gupta in their respective statements, under Section 108 of the Customs Act, 1962, clearly admitted that the consignments of dry dates imported by them at ICD, Kanpur against which Bills of Entry are filed by declaring Country of Origin as "United Arab Emirates" are actually of Pakistan origin. The test report of the independent authority, declaring the dry dates imported by the petitioner of Indian Sub- Continen....
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....H 0808041030 instead of its correct CTH 98060000 as discussed in the preceding paras, Further the provisions of Food Safety and Standards (Packing and Labelling) Regulation, 2011 were also violated by the importers in as much as the instructions relating to labeling of packaging of the said goods were not followed as also discussed above, thus, relying on the above mentioned judgements and the reasons discussed above, I find the impugned goods in the subject cases are liable for confiscation under Section 111(m) of the Customs Act, 1962. DISCUSSION ON ALLEGATION OF NOTICEES REGARDING USE OF DURESS, COERCION AND THREAT BY OFFICERS OF DRI IN RECORDING OF STATEMENTS :- 22. I find that Shri Anil Kumar Agarwal vide letter dated 07.12.2019 has submitted his retraction from his statement dated 06.12.2019. I find that it is very much on records that an enquiry has been ordered in the matter appointing the Deputy Director, DRI, LZU, Lucknow as the enquiry officer. During the course of enquiry, the allegations levelled by Shri Anil Kumar Agarwal were found incorrect and outcome of the enquiry has also been communicated to Shri Agarwal vide this office letter dated 22.01.202....
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....ixteen months has come up with new purported story which deserves to be rejected This invites my attention to the findings in the case of Gulam Hussain v. S. Reynolds (2002) 1 SCC 155 = 2001 (134) E.L.T. 3 (S.C.) wherein the Hon'ble Supreme Court has held: "The ban contained in section 25 of the Evidence Act is an absolute ban. But it must be remembered that there is no ban in regard to the confession made to any person other than a police officer, except when such confession was made while he is in police custody. The inculpatory statement made by any person under Section 108 is to non- police personnel and hence it has no tinge of inadmissibility in evidence if it was made when the person concerned was not then in police custody. Nonetheless the caution contained in law is that such a statement should be scrutinised by the court in the same manner as confession made by an accused person to any non- police personnel. 25. Scrutiny of records to cross check the genuineness of statements of Noticee's recorded under section 108 of the Act reveals that: (i) In the instant case, the Noticees have not only simply retracted the confessional stat....
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....otecting their skin from the action that might be taken by the department in the subject case and further I also observe that investigation in the case had resulted into emergence of many effective corroborative cogent vidences in support of the establishment of the act of smuggling in the subject case. Therefore, I find that the above mentioned submission of the noticee are an afterthought and an attempt to dissuade the proceedings that might be taken against them in the subject case. THE LEGALITY OF THE STATEMENTS RECORDED UNDER SECTION 108 OF THE CUSTOMS ACT 1962 IN THIS CASE : 28. I observe that some noticees have raised the point of legality of the statements recorded by the officers, therefore, I would like to proceed to discuss the legality of the statements drawn in this case under Section 108 of the Customs Act 1962. In this regard, it is pertinent to mention that the statements recorded under Section 108 of the Customs Act, 1962 are very vital and can be used as evidence in any Court of Law. In connection to the same reliance is placed on following judgements: In the case of Naresh J. Sukhawani Vs. Union of India' - 1995 (11) TMI 106 - SUPRE....
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....e Noticee has stated that Writ Petition No. 11283 M /B of 2020 challenging the seizure made by 1.0. of DRI in the instant case is still pending, in which Commissioner, Customs (P) Lucknow is Respondent No. 2. The Senior Standing Counsel has filed Counter Affidavit on 28.01.2021 on behalf of DRI and Customs authorities including this Ld. Authority also in which he has categorically stated in Para 5 that "Further enquiry regarding the genuineness of the Certificate of Origin submitted by the petitioner at ICD Kanpur for clearance of the goods is underway. Since this Ld. Authority has himself filed affidavit before the Hon'ble High Court of Allahabad through Shri Deepak Seth, Sr. Standing Counsel [Ref: Para 5 of Counter Affidavit filed on 28.01.2021] stating therein that verification of 'Certificate of Origin' is still underway the adjudication of the case is premature and deserves to be kept in abeyance till completion of the enquiry. DISCUSSION & CONCLUSION :- In respect of the counsel's plea that adjudication/issuance of impugned Shoe cause notice is pre-mature, I find that as per the records, there is no iota of doubt that the impugned Sh....
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....ssion on role of Noticees, I proceed on discussing the common points raised in the all three identical replies :- (i) THE IMPUGNED DRY DATES HAD BEEN EXPORTED BY M/S. GVO GLOBAL FZC, UAE, AFTER OBTAINING REQUISITE PERMISSIONS &, COMPLETION OF FORMALITIES :- M/s. GVO Global FZC, UAE, is a duly incorporated distinct legal entity registered in accordance with UAE laws having all the requisite permissions / licenses for effecting import and export of commodities in UAE as also to export from 'Free Zone' warehouses; that the subject 'dry-dates' were purchased by them from the 'Free Zone Warehouse' after following strict procedure from competent Governmental Authorities viz., Ajman Chamber of Commerce regulated by Ajman Government in U.A.E., affiliated by International Chamber of Commerce (ICC) that the consignment was duly cleared and supported by Invoice & Packing List Certificate of origin (issued by Ajman Chamber of commerce), Fumigation Certificate and Phytosanitary Certificate by UAE Government ; that in U.A.E. all material is stored in warehouses owned by various logistic companies and the local agents show the required material and if it is found ....
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....y, UAE, the perusal of one of the said declarations revealed. that in column no. 24 of the Export (Customs) Declaration dated 25.08.2019, the Origin is mentioned as AE' whereas in column no. 24 of the Export (Customs) Declaration, the Origin is mentioned as 'PK'. Further in column no. 48 of both the declarations there is a remark as Not for Local release' Further, 'Declaration and Clearance procedure' of Dubai Customs describes the Goods in transit as : "Imported goods from outside the country for the interest of a foreign importer addressed in his name or the name of a licensed agent carrier by a competent authority on the importer's behalf. The goods shall only be registered since transiting the territories of the country to a final destination. Customer guide of Dubai Customs, Dubai describes "Transit" provisions as under: 15.12. Transit "Goods destined to elsewhere in the rest of the world but landing in Dubai may be moved to the destination under transit procedure. Normally customs clear such transit movements against payment of deposits or under guarantees and may take additional guarantees if necessary. Following Declara....
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....oticee, which shows bias of the department against the noticee,( Kush Agarwal), who has been pestered without any legal justification. DISCUSSION AND CONCLUSION :- In this regard, I find that as the SCN no. DRI F. No. DRI/NRU/CI-26/INT-0/ Enq- 572019/9456 - 9462 dated 29.06.2020 is not pending before me for adjudication because of the jurisdiction issue, thus offering any comment regarding the query raised by the Counsel does not appear proper However, it would not be out of context to mention that the facts and circumstances of every case may differ from the another one depending upon the availability of evidences against certain person/firm and role played by him (iii) BEING EXPORTER, HAD NO ROLE IN SUBMISSION OF DECLARATION FILED BY IMPORTERS AND PROVISIONS OF SECTION 112 & 114 DO NOT APPLY ON HIM :- The Noticee has argued that the noticee shifted to United Arab Emirates much prior to the time when the notification enhancing the duty on dry-dates came to be published. The trading firm established was in accordance with the rules and regulations prevalent in UAE. No fault can be found in business transactions between two contracting parties, unless and until the....
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.... also have to be made noticees and be subject to the same penal provisions as the importers themselves in each and every proceedings. Contemplation of such a jurisdiction caricaturises the customs enforcement. The situation of the appellant is not much different from that of shippers/ consignors of the goods. Accordingly, the imposition of penalty on the appellant for an alleged act that has nothing to do with the obligation devolving on imports under Section 46 and Section 47 of the Customs Act, 1962 may not be proper. Lack of jurisdiction that precludes the appellant from approaching the Settlement Commission is a clear indication that the provisions of Section 112 were not intended to cover persons who are not concerned with the goods after its landing in India. DISCUSSION AND CONCLUSION :- In this regard, the noticee' plea that he had shifted to United Arab Emirates much prior to the time when the notification enhancing the duty on dry-dates was issued does not make any difference to the case. I also find that the Noticee has also stated that there is no material evidence of delinquent conduct on their part and also no ulterior motive in the case. In this ....
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....her to the exporter of importer in such a case since it is based on mutual contract between parties and very well within the framework of international trade practices as also ratified by the International Chamber of Commerce (ICC); that there is no material to infer any conspiracy, meeting of mind between parties to evade higher amount of duty. Pertinently, the role of answering noticee no.3 gets over once the material has been loaded from the port of Jebel Ali'. In so far the 'meeting of mind' and "collusive bidding' the Department has failed to adhere to the established principle which governs this aspect and the basic requirements before it could be inferred that there was a meeting of mind. The law in this regard is explicitly clear; that aware of the misuse of the law of conspiracy Woodroffe & Amir Ali in Law of Evidence, l6thEdition, Page 576 stated:- "The wide range of evidence in conspiracy cases has led judges to insist upon careful scrutiny of the evidence. Fitzgerald, J., in Irish State Trials of 1867 said: "The law of conspiracy is a branch of our jurisprudence to be narrowly watched, to be jealously guarded and never to be pressed beyond its t....
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.... under Section 108 of the Customs Act 1962. In these statements they also informed about their regular telephonic conversation with Agrawal on relation to the import of impugned dry dates. 3. M/S B N INTERNATIONAL IN R/O SCN NO. DRI/LZU/CI/26/IN-14/BN/2019 Shri Brijendra Narain Rai, Noticee No 2, and proprietor of M/s B.N. International, Mall Road Kanpur ( Noticee No. 01) appeared for virtual Hearing for him and his firm as well on 23.12.2020. During the personal hearing, Shri Rai stated that he established this firm M/s B.N. International, Mall Road, Kanpur in 2018 to export vegetables; that he visited Dubai to sort-out some business /cargo related problems of vegetable export, where he came into contact with Shri Kush Agarwal; that after his return to India, Shri Kush Agarwal contacted him telephonically and offered him to import dry dates on credit basis, on which he consented and started importing dry dates (geRT), but faced this problem; that he joined this business of import of dry dates due allurement of profit and for growth of his business; that he is not in touch with Shri Kush Agarwal for a long time that his (Shri Rai's) refusal for payment of the ....
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....anpur 112(a) and/or 112(b) (ii) Shri Bijendra Narayan Rai 114 AA (iii) Shri Kush Agarwal, Ghaziabad 112(a) and or 112(b)& 114 AA 03. DRI/LZU/CI/26/INT- 14/BN/2019/ Shakti Traders dated 28.09.20 (i) M/s Shakti Traders, Gorakhpur 112(a) and/or 112(b) (ii) Shri Vikas Kumar Gupta, Gorakhpur 112(a) and/or 112(b)& 114 AA (iii) Sri Akash Kumar Gupta Gorakhpur 112(a) and/or 112(b)& 114 AA (iv) Shri Kush Agarwal, Ghaziabad 112(a) and/or 112(b)& 114 AA 31.2 I find that in the impugned three Show Cause Notices penalty under Section 114 AA has been proposed against Shri Saurabh Maheshwari of M/s Raghunath Laxminarayan, Ramganj, Kanpur, (SCN NO.DRI LZU/CI/26/INT 14/RL/2019/10215 dated 28.09.2020) Shri B.N. Rai, Kanpur ( SCN No :- DRI/LZU/CI/26/IN-14/BN/2019 dated 28.09.2020) and on Shri Vikas Kumar Gupta, Gorakhpur & Sri Akash Kumar Gupta, (SCN No ;- DRI/LZU/CI/26/INT- 14/BN/2019/ Shakti Traders dated 28.09.2020) & against Shri Kush Agarwal in all three Show Cause Notices. In this context, before discussing the penalization on the noticees under this section, I am reiterating the Section 114AA of the Act as under :- [Sectio....
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.... (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty [not exceeding the value of the goods or five thousand rupees], whichever is the greater; (ii) in the case of dutiable goods, other than prohibited goods, subject to the provisions of section 114A, to a penalty not exceeding ten per cent of the duty sought to be evaded or five thousand rupees, whichever is higher : Provided that where such duty as determined under sub- section (8) 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 differe....
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....aid impugned goods i.e 'Dry dates of Pakistan origin' to the Indian importers through his firm i.e. M/S GVO Global FZC, UAE, but also managed 8 arranged all the import documents, especially the concocted Certificate of origin (CO0) issued by the concerned UAE authorities relating to the said import consignments of Dry dates of Pakistan origin. He also encouraged Indian importer to import the said impugned goods by supplying the said goods on credit basis. It, therefore,. appeared that he is the mastermind behind this modus operandi b) REPEATED OFFENDER :- I also find that it has been established during investigation that his role was not confined to one case, but in a very systematic manner, he made contact with various importers of India and persuaded them to indulge in this unholy nexus and also assured them to make all manipulations in the records related to dry dates of Pakistan origin, showing them as of UAE origin. c) TOTAL NON-COOPERATION :- I also notice that Shri Kush Agarwal failed to appear on any of the dates fixed for appearance during investigation and even during the process of adjudication. Thus, it therefore is quite evident that he has tr....
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.... dates on credit ; that initially, he had imported one container of Dry dates from Shri Kush Agarwal on credit, which was sold in the market very easily ; Further, four containers of Dry dates were also moved during this period, hence, no payment has been made by him with respect to said imports of Dry dates ; that Dry dates to be imported vide said invoices are of UAE origin, as stated by his supplier and in this regard, he handed over all the relevant documents like invoices, Packing lists, Bills of Lading and Certificates of Origin issued by Ajman Chamber, UAE to his CHA for customs clearances. In his another statement dated 12.10.2019 stated that that he visited Dubai in the year 2018 for business purpose, where his client Shri Sayyadji introduced him to Shri Kush Agarwal, the owner of M/S GVO Global FZC, UAE ; that Shri Kush Agarwal assured him that though Dry dates had been procured by him from Pakistan, but all the import documents including COO (certificate of origin) relating to the import consignments of said Dry dates would be issued from UAE and there would be no problem in customs clearances of the said goods and the said goods would be supplied on credit basi....
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....vance with Shri Kush Agarwal, the owner of M/s GVO Global FZC, UAE and supplier of the said impugned goods. He along with his elder brother, Shri Vikas Kumar Gupta was very well aware that the impugned goods to be imported are of Pakistan origin and its re-routing through UAE . He, in fact, discussed this matter with Shri Manoj Bansal from Gorakhpur as evident from 02 audio files, extracted from his brother's phone, wherein he categorically admitted that the said import consignments Of Dry dates are not a produce Of UAE and are being supplied to them after importing the same from Pakistan, He also confessed in the conversation that they are satisfied with the Said import as this import of Dry dates Of Pakistani Origin is rerouted through Dubai and they have not imported the said goods directly from Pakistan. Therefore, he is liable to penalty under the provisions of Section of the Customs Act, 1962. WHETHER PENALTY CAN BE IMPOSED ON BOTH THE FIRM & IT'S PROPREITOR IN A PROPREITORSHIP FIRM :- 33. ...... FINAL CONCLUSION ON THE PENALTIES ON THE NOTICEES :- The individual role of Shri Saurabh Maheshwari, (SCN No. DRI /LZU/CI/26/INT-14/RL/201....
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....Shakti Traders dated 28.09.2020) & Shri Kush Agarwal (in all three Show Cause Notices) through ICD Panki, Kanpur, by mis-declaring country of origin as UAE of the said impugned goods with the intention to evade payment of higher rate of Customs duty Accordingly, I find that it is well established fact that a syndicate involving all three firms & persons were actively involved in the subject case and have played their respective roles in respect of goods liable to confiscation Section 11 of the Customs Act, 1962. Further the offence being of grave nature which have been duly discussed by me infer me to render that they are liable to penal action under Section 112 (b) of the Customs Act, 1962." 4.4 We find that the entire case of the revenue rests on the following evidences: (i) Sample examination report given by M/s Atul Rajasthan Date Palms Limited. (ii) Statements of certain related unrelated persons with the imports made. (iii) Non compliance with FSSAI Regulations, 2011 (iv) FZ Transit Out Customs declarations which were filed with Dubai Customs, Federal Customs Authority, UAE for transit of containers containing Dry Dates and obtained from....
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....he same should have been done in consultation with the Cerificate issuing authority. Thus, the Custom Authorities under Custom Act, 1962, have no jurisdiction to challenge the documents issued by the Government Authorities of the other Country as has been held in the following cases: ⮚ Pradip Polyfils Pvt. Ltd. [2001(173) E.L.T. 3 (BOM.)] ⮚ Khanna Paper Mills Ltd. [2011(273) E.L.T 149 (Trib .- Del.)] ⮚ S. Chandra Sekhran [2011 (132) E.L.T 751 (Trib-Chennai)] ⮚ Titan Medical Systems Pvt. Ltd. [2003 (151) E.L.T 254 (S.C)] ⮚ Symphony International [Final Order No A/10194/2024 dated 23.01.2024} "8. Considered. It is clear from the factual narrative that, the certificate of origin in the present instance was issued by the designated authority i.e 'Ministry of International Trade and Industry (MITI) Malaysia' which is competent authority to issue such certificate under ASEAN FTA (AIFTA) mentioning the Regional Value content (RVC) to be much higher than stipulated 35% i.e. 47%. The Free Trade Agreement stands incorporated in the Customs Tariff vide Notification No. 46/2011-Cust., dated 01.06.2....
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.... on the basis of following assumptions and presumptions without rebuttal of the documentary evidence procured and produced by the appellant :- ⮚ That in absence of cost data in relation to imports in 2014, the- certificate duly verified by the Malaysian authority was presumed to be in genuine even in this case, one of the party being same. Despite much higher claim of 47% CV claim by the appellant in this instance, four years later. ⮚ It was also presumed that Malaysian authorities will not be able to get- cost data on the manufacturing unit and will simply agree to the percentage on the basis of their own verification of 47%. ⮚ That there is no need of any verification and old verification or lack of- it holds goods in the Year 2018 also. ⮚ That the onus of getting the contents of certificate verified has shifted- from Government to Government basis (G to G) to (G to I) basis i.e. Government to importer basis. 8.1 Case law relied upon by the department in the matter of M/s. SURYA LIGHT Vs. COMMISSIONER OF CUSTOMS, BANGALOR as reported in 2008 (226) E.L.T 74 (Tri. - Bangalore) and 2007 (217) E.L.T. 437 reporte....
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....7 We do not find any merits in the reliance placed by the adjudicating examination report given by M/s Atul Rajasthan Date Palms Limited, as the same is based on the experience of the person signing the said report without stating any reasons. In the case of Ram Prakash [2003 (161) ELT882(T)] following has been observed "7. The opinion given by Shri Jai Prakash Gupta that the impugned scrap is of foreign origin is not acceptable for the simple reason that he has tendered his opinion without mentioning the reasons to arrive at such a conclusion. The learned Counsel for the appellants had rightly contended that he is not an expert as he has never imported copper scrap. He had himself deposed in his cross-examination that it is difficult to give a definite criteria of assessing imported copper scrap; it can only be assessed by a person dealing in this trade. ... " 4.8 Determining Country of origin of any goods is a complex matter and it cannot be decided by way of visual inspection of goods only. In the case of Krishna Das [2014(303) ELT 548 (T)] following has been observed: "7. Apart from so called expert opinion of Shri Anand Agarwal, there is virtually no evide....
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....o legal liability can flow from the report of such an institution' the respondent authorities were not justified in again relying upon the ARDF Mangalore's report to justify the seizure in question. In fact such an attempt of the respondent authorities would be contemptuous in nature as it is likely to cause harassment to the traders, by not following the judgment of the Court. 13. This Court also finds from Annexure-P/12 that it is a reply of the Directorate of Arecanut & Spices Development, Government of India which clearly provides that no laboratory test have been standardized for tracing the country of origin. Maa Gauri Traders [2019 (368) E.L.T. 913 (All.)] "15. Applying the principles enshrined in the aforesaid decisions to the facts of the case at hand, it is apparent that the CESTAT after considering all the material on record including the orders passed by the authorities below, have given a concurrent finding of fact that the Revenue could not establish the foreign origin of the betel nuts. The documents produced by the respondents indicated that the goods in question were purchased from local markets, and in support of the purchases th....
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....n next paragraph we need not further elaborate here. 4.11 The similar case in of importation of Dry Dates relying on the same evidences have been considered by us in case of Omega Packwell [Final Order No 70331-70336/2024 dated 07.06.2024] and following was observed: "17. On the issue of country of origin, we find that in all documents viz., invoice, country of origin certificate, phytosanitary certificate etc. country of origin of dry dates in present case was shown UAE. Slips tagged with bags of dry dates were showing country of origin of the goods UAE. No enquiry was conducted by the Department to prove that country of origin certificate duly issued by the Competent Authority of the exporting country was fake. As per the country of origin certificate, the same was issued by Ajman Chamber of commerce after verification of goods. At Sl.No.12 of the certificate, it has been certified by the Competent Authority of Ajman Chamber of Commerce, UAE that evidences produced before them satisfy that the said goods originate in the country shown in the certificate which is UAE in the present case. It shows that the said certificate was issued after proper verification of origin ....
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....esponse shall be brought to the notice of the Verification Authority while sending the request: a. timeline as prescribed in the respective trade agreement; or b. in absence of such timeline in the agreement, sixty days from the request having been communicated. 4. Where verification in terms of clause (a) or (b) of sub-rule (1) is initiated during the course of customs clearance of imported goods, a. The preferential tariff treatment of such goods may be suspended till conclusion of the verification; b. T he verification Authority shall be informed of reasons for suspension of preferential tariff treatment while making request of verification; and c. The proper officer may, on the request of the importer, provisionally assess and clear the goods, subject to importer furnishing a security amount equal to the difference between the duty provisionally assessed under section 18 of the Act and the preferential duty claimed. 5. All requests for verification under this rule shall be made through a nodal office as designated by the Board. 6. Where the information requested in this rule is received within the prescribe....
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....nt was sent only a questionnaire and the said questionnaire has been answered by the appellant herein. No further action has been taken by the respondents. The Director General of Health Services has also not issued any cancellation of certificate as on date. In these circumstances, we are clearly of the view that without withdrawing or cancelling the certificate already issued, the present seizure cannot stand. Therefore we hold that the seizure effected by the respondents is not in accordance with law. The impugned order of the learned Single Judge, in these circumstances, requires to be set aside and accordingly the same is set aside." The Tribunal in the case of Alfakrina Exports vide Final Order No.11759/2023 dated 23.08.2023(Tri - Ahmd) on the issue of non-acceptability of Country of Origin Certificate for deciding origin of goods held that the Certificate of country of origin cannot be discarded without checking its authenticity and benefit if any cannot be denied. In view of the above settled legal position, we hold that goods, in question, were of UAE origin and confiscation of goods on the ground of mis-declaration of country of origin is not sustainable....
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....ssioner of Customs [2016 (334) E.L.T. 255 (Del.)], it has been observed by the Hon'ble Delhi High Court that FSSAI is the Authority to clear food items relating to compliance of the FSSAI Regulations. 19. It is further observed that the goods imported under the said bill of entry were physically examined by the Inspector (Exam. Shed) and Superintendent (Exam. Shed) before allowing the clearance and the same were found proper. As per para-1 of chapter-3 of the Customs Manual, it is responsibility of the Examining Officer to check import cargo to confirm the nature of goods, valuation and other aspects for ensuring the compliance of restriction. As per para 4.3 of chapter 8 of the Customs Manual, customs during examination shall exercise "general checks" and if products are not found to be satisfying requirements, clearance will not be allowed. In para 4.4 of chapter 8 of the Manual, "General check" includes verification of product to ensure compliance of labeling requirement also. Examining officers did not express any discrepancy regarding non- compliance of the FSSAI Regulations, 2011. It proves beyond doubt that there was no non-compliance of the FSSAI Regulations, 2....
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....importer in any way in said mis-declaration country". In the case of Dharam Steels Services Pvt. Ltd. vs. C.C. (Import), Nhava Sheva [2013 (297) E.L.T. 291 (Tri .- Mum.)], the Tribunal has held that declaration made in bill of entry as per invoice and packing list of overseas supplier does not show any misdeclaration by the importer and goods are not liable to confiscation. The Tribunal in the case of Penshibao Wang P. Ltd. vs. Commissioner of Customs (Seaport-Import), Chennai [2016 (338) E.L.T. 597 (Tri .- Chennai)] has observed that declaration made in the bill of entry as per invoice and other documents does prove mis-declaration by the importer if goods are found different. In the case of Wings Electronics vs. Commissioner of Customs, Mumbai [2006 (205) E.L.T. 1146 (Tri .- Mum.)] the Tribunal has held that "the assessments made cannot be reopened now for valuation by taking the shelter of misdeclaration of country of origin as USA when goods were marked as Australia, subsequent to the clearance by the proper officer having assessed & cleared the goods after examination & not having taken cognizance of the said mis-declaration of country of origin. There was & is no mis-declarat....
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....opinion obtained from Atul Rajasthan Date Palm Ltd., (ii). Export Declaration which was obtained from the shipping line and (iii). statements of Chandan Chaudhary and Anil Kumar Agarwal which were indicating, as per the Adjudicating Authority, that the said goods were of Pakistan origin but the same was mis-declared to be of the origin of UAE. It is found that on the aspect of country of origin of dry dates imported by the Appellants, opinion given by ARDPL, Jodhpur is as follows :- "On opening and upon physical examination the above representative samples, based upon my experience, my opinion regarding country/ area of origin is Indian subcontinent". ARDPL is engaged in production and marketing of tissue culture raised date palm plants with the aim to enhance the economy and ecology of the arid regions of India as per details available on its website www.ardp.co.in. It is not any scientific laboratory having expertise in identification of origin of dry dates. It is further noticed that experience and qualification of the person inspecting sample was not disclosed. In absence of such declaration, it is very difficult to recognize him as an expert. The opinion has been issued only o....
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....n on the basis of said opinion is not sustainable. 22. The Original Authority placed heavy reliance on the Export Declaration which was received from the shipping line which was engaged in sea transportation of said dry dates from Dubai to India. In the said Export Declaration country of origin was shown "PK" which is short form of Pakistan as per the Department. Export Declaration is filed by the exporter with customs of exporting country. The said document was not procured from the customs Dubai but obtained from shipping line. How the said document is maintained by the shipping line depends upon the shipping line as it was their internal document. It is further observed that in the said document C & F value was declared to USD 44247/- while in the invoice it was USD64827/ -. Consignee and consignor names were also mentioned incorrectly. It was an unsigned photocopy of document. The Export Declaration submitted in this case, reflects figures which do not match with other documents and also does not reflect name of shipping line. Hence this document which is full of errors cannot be considered to be an evidence to prove country of origin. In the case of Commissioner of Cu....
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....stan origin. It is evident that his statement about country of origin was based on hearsay without any evidence. In the case of Laxmi Narayan Udyog (P) Ltd. vs. Commissioner of Customs (Prev.), Kolkata [2017 (348) E.L.T. 496 (Tri .- Kol.)], the Tribunal has held that hearsay evidence cannot be accepted as reliable evidence for deciding issue against the Appellant. The similar view has also been taken by the Tribunal in the case of Chandreswar Prasad vs. Commissioner of Customs, Patna [2016 (340) E.L.T. 590 (Tri .- Kol.)] where it has been held that statements on hearsay basis without any authenticity cannot be a valid evidence. The conclusion drawn by the Adjudicating Authority on the basis of the said statement is not supported by legal provisions. Hence, it has no evidentiary value. 25. Statement of Shri Anil Kumar Agarwal Manager, M/s Padam Parmeshwari Ventures Pvt. Ghaziabad, where Shri Kush Agarwal, owner of M/s GVO Global FZC UAE, is one of directors was also relied upon by the Adjudicating Authority on the contention that he is nephew of Shri Kush Agarwal. It is an undoubted fact that Shri Anil Kumar Agarwal has no locus standi in the business of supplier company i.....
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....he statement if the same is not rebutted by the Department. The Hon'ble Supreme Court in the matter of Mohtesham Mohd. Ismail [2007 (220) E.L.T. 3 (S.C.)] held that even confession of an accused is not a substantive evidence. The statement is part of the evidence only if it is voluntary and free from any sort of pressure. In the case of Francis Stanly @ Stalin vs. Intelligence Officer, Narcotic Control Bureau, Thiruvanthapuram [2006 (13) SCALE 386], Apex Court has emphasized that confession only if found to be voluntary and free from pressure, can be accepted. The Hon'ble Apex Court in Vinod Solanki Vs. U.I.O. [2009 (233) E.L.T. 157 (S.C.)] again cautioned in using the retracted statement. The relevant para is as follow :- "22. It is a trite law that evidences brought on record by way of confession which stood retracted must be substantially corroborated by other independent and cogent evidences, which would lend adequate assurance to the court that it may seek to rely thereupon. We are not oblivious of some decisions of this Court wherein reliance has been placed for supporting such contention but we must also notice that in some of the cases retracted confession has been....