Custom, Excise & Service Tax Tribunal
M/S Hindustan Unilever Ltd vs C.C.E, Lucknow on 5 April, 2013
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Court No. III
C/Appeal No. 3228/2012-CU[SM]
(Arising out of Order-in-Appeal No.231-232-CUS/APPL/KNP/2012, dated 03.08.2012 Passed by the Commissioner (Appeal) of Customs and Central Excise, Lucknow)
Date of Hearing: 28.03.2013
Date of Pronouncement:
Honble Mr. Sahab Singh, Technical Member
1. Whether Press Reporters may be allowed to see : No
The order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it would be released under Rule 27 of : Yes
The CESTAT (Procedure) rules, 1982 for
Publication in any authoritative report or not?
3. Whether their lordships wish to see the fair : Seen
copy of the order?
4. Whether order is to be circulated to the : Yes
Department Authorities?
M/s Hindustan Unilever Ltd. Appellant
Vs.
C.C.E, Lucknow Respondent
Appearance:
Appeared for the Appellant: Shri, J.M. Sharma, Consultant
Appeared for the Respondent: Shri, Sanjay Kumar, A.R
Coram: Honble Shri Sahab Singh, Technical Member
Final Order No. 55935/2013
Per Sahab Singh:
This is appeal filed by M/s. Hindustan Unilever Ltd. (here in after referred to as appellant) against the Order in Appeal No. 231-232-CUS/APPL/KNP/2012 dated 03.08.2012 passed by the Commissioner (Appeals) Kanpur.
2. The brief fact of the case are that on the basis of an information gathered by officers of DRI Lucknow that third Country Origin goods (other than India & Nepal) were being smuggled in SLR No. NR-98721 of Train No. 4055, Brahmaputra Mail, the officers recovered thirteen packets booked from New Tinsukia Station vide PW Bill No. 280618 containing Chinese origin hair clips and other hair accessories and these goods were detained for further investigation. These goods were examined in the presence of two independent panchnama witnesses and were found to contain pairs of Hair Clips and Hair Accessories with Made in China and Barbie brand. These goods were seized on 13.08.2010 by the officers as no documents evidencing lawful import of goods was produced by any one. No person or organization came forward to claim the ownership of the goods and it appeared that intentionally vague/fake names and addresses were given on the transport documents. M/s. Hindustan Unilever Ltd. through Shri Dilip Save, Manager, Indirect Taxation, claimed the seized goods on the basis of documents which were not correlated with the consignment. On completion of the investigation a Show Cause Notice was issued to the appellant and also to Shri Rambabu Sharma consignor and Shri Md. Allaudin consignee proposing the confiscation and imposition of penalties on them. Show Cause Notice was adjudicated by the Additional Commissioner who confiscated the goods and imposed the penalty of Rs. 1 lakh on the appellant. The appellant preferred an appeal before the Commissioner (Appeal) who vide the impugned order rejected the appeal. Appellant preferred this appeal against the impugned order before this tribunal.
3. The Ld. Consultant appearing for the appellant submits that the said consignment was imported by them under proper Bill of entry and clearance was done after due assessment by Customs at Nhava Sheva Port. He submits that said consignment after imports was over, was transferred to appellants unit at Doomdooma (Assam) through Fasttrain Cargo Pvt. Ltd. which is also evidenced from transfer the documents. He further submits that due to change of plans for manufacture, the consignment was transferred to appellants unit at Haridwar through rail. This is also evidenced from M/s. Bom-Gim Couriers certificate-cum-letter dated 01.07.2010 as well as parcel way Bill. He submits that in the parcel way bill the consignor is shown as Shri Ram Babu Sharama and consignee is shown as Md. Allauddin who were the clearing agents of M/s. Bom-Gim Courier at Tinsukia Railway Station (Assam) and New Delhi Railway station respectively. From the above it is clear that from the point of importation to the point of detention transfer of goods was under proper and legal documents. He points the goods have been seized for contravention of the Notification No. 9/96-Cus and for contravening this Notification the Department has to prove that goods were exported to Nepal from country other than India and those goods were imported from Nepal to India. In present case this burden has not been discharged by the Department. He relies on the decision on this Tribunal in case Arati Enterprises V/s Commissioner of Customs, Allahabad reported in 2012 (284) E.L.T 636 (Tri.-Del.)
4. The Ld. D.R. appearing for the revenue submits that in this case there was intelligence regarding smuggling of goods from Nepal through Rail. He further submits that in the parcel way Bill Shri Ram Babu Sharma and Ms. Allauddin were shown as consignor and consignee and M/s. Bom-Gim Courier vide their letter dated 01.07.2010 certified that they were their clearing agent. He submits that letters regarding personal hearing could not be delivered to Shri Ram Babu Shrama and Md. Allauddin at the addresses given in the PW Bill. Personal hearing letter was also tried to be served through Bom-Gim Courier which could not be served upon on them by M/s Bom-Gim Courier also. He further submits that Bom-Gim Courier vide their letter dated 28.02.2011 informed Shri Ram Babu Sharma and Md. Allauddin are not on their regular employment. Hence it was not possible for them to recognize and deliver personal hearing letter on them. Letter dated 28.02.2011 therefore contradicts their letter given by them on 01.07.2010. He submits that since the goods were of Chinese origin these goods qualified as third country origin goods and it is not necessary for revenue to produce the export documents from China to Nepal. He therefore submits that Commissioner (appeal) as rightly rejected their appeal.
5. After hearing both sides I find that goods have been seized by the Department treating them smuggled goods of third country origin from Nepal. The appellant submits that these goods were legally imported at Nhava Sheva Port vide Bill of entry No. 613979 dated 30.12.2009 and after the import these goods were transferred to their unit in Assam. Later on it was decided by the appellant that goods should be shifted to their another unit at Haridwar through a Courier at Tinsukia namely M/s Bom-Gim Courier & Logistics. These goods were sent through parcel to Haridwar. It is contention of the appellant that since the goods are legally imported there is no contravention of notification 9/96 and consequently there is no case for confiscation of the goods. I find that Commissioner (Appeal) has examined this submission of the appellant and the Commissioner (appeal) has observed that documents recovered along with the seized goods do not make any reference of HUL and M/s Bom Gim Couriers. Available records do not establish any identifiable co-relation between the seized goods and goods imported vide Bill of entry dated 30.12.2009. Commissioner (appeal) has also observed that since the addresses given for the consigner Shri Ram Babu Sharma and consignee Md. Allauddin were found fake, the import of goods through documents submited by appellant becomes doubtful. More over if Shri Ram Babu Sharma consignor and Md. Allauddin consignee were genuine persons, there should not have been any problem in serving the letters on them either on given address or through M/s Bom Gim Couriers & Logistic Ltd. M/s Bom Gim Courier & Logistic Ltd. in their letter dated. 01.07.2010 certified that Shri Ram Babu Sharma and Md. Allauddin were their agents in Tinsukia and Delhi but later vide their letter dated 2802.2011, they informed that Shri Ram Babu Sharma & Md. Allauddin were not on their employment. In such circumstances contention to treat the consignment legally imported is not acceptable. I do not find any infirmity is this finding of Commissioner (Appeal) that seized goods are different from good mentioned in B/E submitted at Nhava Sheva Port.
6. The appellant also claims that there is no contravention of Notification 9/96 as Department has not proved that goods were exported to Nepal from China and those goods were being imported from Nepal to India. I find that there is no dispute about origin of goods as the goods are of Chinese Origin. When the goods of Chinese origin come from Nepal, there is no need to prove that goods were exported from China to Nepal. Regarding the point proving the goods imported from Nepal, I find in the present case goods were dispatched from Tinsukia Railway station Assam and that place is bordering Nepal and when the goods are clandestinely bought into the country, there will not be any legal document showing import from the Nepal. In view of the fact that goods are of the Chinese origin and being dispatched from Tinsukia Railway station Assam, Department is able to prove that goods come to India in violation of the Notification 9/96.
7. Regarding the reliance of the appellant on the decision in case of Arati Enterprises (Supra) I find that the goods involved in the cited case were Betel Nuts and showing no country of the origin mentioned on the goods whereas in the present case the Made of China is clearly mentioned on the goods, therefore the ratio of that decision is not applicable to the present case.
8. In view of the above I find no infirmity in the impugned order and uphold the order in appeal.
9. The appeal is rejected.
(Order pronounced in the Court on05.04.2013) Sahab Singh Member (Technical) Neha 1