Custom, Excise & Service Tax Tribunal
) M/S.Parnami Sales Corporation vs Commissioner Of Customs(Port), ... on 11 January, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Sl.No.1)Appeal No.Cus.Ap.492/09
Sl.No.2)Appeal No.Cus.Ap.456/09
&
Stay Petition No.SP-721/09
(Arising out of Order-in-Original No.KOL/CUS/PORT/52/2009 dated 04.09.2009 passed by the Commissioner of Customs(Port), Kolkata.)
FOR APPROVAL AND SIGNATURE
HONBLE SHRI S.S. KANG, VICE PRESIDENT
HONBLE SHRI P.KARTHIKEYAN, MEMBER(TECHNICAL)
1. Whether Press Reporters may be allowed to see
the Order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the
CESTAT(Procedure) Rules, 1982 for publication in any
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
1) M/s.Parnami Sales Corporation
2) Shri Sanjay Daga
Applicant (s)/Appellant (s)
Vs.
Commissioner of Customs(Port), Kolkata
Respondent (s)
Appearance:
Shri V.N.Dwivedi, Advocate & Ms.Jayanta Char, Advocate for the Appellant No.1 and Dr.Samir Chakraborty, Advocate & Shri D.K.Saha, Consultant for Appellant No.2. Shri A.K.Sharma, Authorised Representative(JDR) for the Respondent (s) CORAM:
Honble Shri S.S.Kang, Vice President Honble Shri P.Karthikeyan, Member(Technical) Date of Hearing:- 11.01.2011 Date of Pronouncement :- 11.01.2011 ORDER NO.
Per Shri S.S.Kang.
1. Heard both sides.
2. The Appeal of M/s.Parnami Sales Corporation is taken for hearing in pursuance to the order dated 24.08.2010 passed by Honble Calcutta High Court.
3. The Appeal filed by Shri Sanjay Daga is against the same impugned order whereby penalty is imposed under Customs Act therefore in view of the order passed by Honble High Court the Appeal of Shri Sanjay Daga is taken up after weaving the predeposit of penalties.
4. Briefly stated the facts of the case are that a consignment of Pentaerythritol 95% Min. was intercepted by the revenue authorities and during investigation it was found that the goods were imported from China and are liable for anti-dumping duty. The goods were imported in the name of M/s.Parnami Sales Corporation, a proprietory concern of Shri Mohan Pandey. To ascertain the name and address of the person who has imported the impugned goods the revenue enquired from the address given in the IEC code and given by C.H.A.. The imported was not found at the given address. Thereafter summons were issued. During investigation the C.H.A. disclosed that all the documents in respect of import were handed over by one Shri Sanjay Daga, Appellant. In his statement Shri Sanjay Daga, disclosed that Shri Monoj Pandey is proprietor of the importing firm and Shri Sanjay Daga has negotiated with the over-seas supplier and the import was effected and with the consent of proprietor of M/s.Parnami Sales Corporation the bill of entry was filed. Subsequently Shri Mohan Pandey appeared before the investigation agency and on 12.12.2008 a statement was recorded where he explained that he is also known as Monoj Pandey and he is the proprietor of the importing firm and goods in question are imported by him. He also disclosed that while obtaining IEC code the appellant gave two addresses and his business at the address on which the Revenue enquired is still going on. After investigation a Show Cause Notice was issued for confiscation of the goods on the ground that M/s.Parnami Sales Corporation for practical purposes were not actual importer of the consignment under the cover of bill of entry in question. Shri Sanjay Daga appears to be the actual importer but used the import-export code of M/s.Parnami Sales Corporation and earlier to the import in question the Appellants made import of one consignment in the same manner. In the Show Cause Notice the allegation is that Appellant violated the provisions of section 7 of Foreign Trade (Development & Regulation) Act, 1992 read with Rule 12 & 14 of Foreign Trade (Regulation) Rules, 1993 and Section 2 of Customs Act read with Section 11 and Section 11D of the Customs Act. The adjudicating authority confiscated the goods in question and also held that goods in respect of the earlier imported are also liable for confiscation and allowed the same on payment of redemption fine of Rs.20,00,000/-(Rupees Twenty Lakhs only). Penalties are imposed on the proprietor of importing firm as well as Shri Sanjay Daga.
5. Appearing on behalf of M/s.Parnami Sales Corporation learned counsel submitted that there is no mis-declaration in respect of the goods imported. The goods are liable for anti dumping duty and in respect of earlier consignment appropriate anti dumping duty was paid. There is no finding in the impugned order regarding mis-declaration of any kind. The order is passed only on the basis that Shri Mohan Pandey, proprietor of importing firm has lended his IEC code to Shri Sanjay Daga. The contention is that from very beginning the Appellants are claiming the goods as the Appellants are the importer and in the very first statement on 12.12.2008 the Appellant had not denied the import of the goods. It is not the case that Appellant lended his IEC code however Shri Sanjay Daga gave some financial help in respect of the import which is not prohibited under the Customs Act. It is also submitted that the IEC code was obtained on two address and revenue officials gone to one address where Appellant was not found present. However, the business of the appellant was normally carried out at the address given as Appellant produced necessary evidence in this regard therefore the present impugned order was not sustainable.
6. Learned Sr.Counsel appearing on behalf of Shri Sanjay Daga submitted that import is made by the firm owned by Shri Mohan Pandey and Shri Mohan Pandey is not denying the import. The penalty is imposed on the ground that Shri Sanjay Daga has negotiated with the exporter and he has also given some financial help to the importer which is a normal business practice. It is also submitted that M/s.Parnami Sales Corporation authorized the Appellant to submit the documents for clearance of goods and to act on behalf of the importer and this authority letter was produced before the adjudicating authority. Hence the Appellants are not liable for any penalty.
7. Contention of Revenue is that as per the provisions of Section 7 of the of section 7 of Foreign Trade (Development & Regulation) Act, 1992 no person is entitled to make import except under the import-export code number granted by the Director General of Foreign Trade (D.G.F.T.). In the present case the actual import is made by Shri Sanjay Daga by using the IEC code of Shri Mohan Pandey therefore the impugned order is rightly passed.
8. We find that the impugned order is passed on the ground that M/s.Parnami Sales Corporation is not actual importer for the consignments. In fact the import is made by Shri Sanjay Daga by using the IEC code of M/s.Parnami Sales Corporation. We find that there is no finding that IEC code was obtained by fraud or by mis-representation by Shri Mohan Pandey. The adjudicating authority at internal page 38 of the impugned order accepted that the submission of the importer that they are having an establishment at the address given at the time of obtaining IEC code. There is no finding regarding mis-declaration of the consignment in question or earlier consignments. The importer fairly admitted during argument that goods are liable for anti-dumping duty and in respect of earlier consignments also appropriate anti-dumping duty as well as customs duty was paid. There is no evidence on record to show that Shri Sanjay Daga gave financial help to Shri Mohan Pandey. However, consideration amount is paid to the exporter by the importing firm. There is no evidence that Shri Sanjay Daga impersonated Shri Mohan Pandey before the customs authorities. Therefore we find that the adjudication order passed on basis that M/s.Parnami Sales Corporation are not actual importer are not sustainable. It is also not established on record that Shri Mohan Pandey obtained IEC code by fraud or by giving any false declaration. There is no proceeding initiated by the D.G.F.T. for cancellation of IEC code. In these circumstances the impugned order is not sustainable hence set aside. Appeals are allowed.
(Pronounced and dictated in the open court.) Sd/ sd/ (P.KARTHIKEYAN) (S.S.KANG) MEMBER(TECHNICAL) VICE PRESIDENT sm 6 Appeal No.Cus.Ap.492/09 & 456/09