Customs, Excise and Gold Tribunal - Tamil Nadu
Kalyani Traders, Shri M. Ranganathan, ... vs Cc on 22 October, 2002
Equivalent citations: 2002(84)ECC730, 2002(150)ELT1305(TRI-CHENNAI)
ORDER Case Note: Differential Duty Mis-declaration and under-valuation is evident - Both the Order-in-Original clearly discusses the detailed evidence which establishes the fact of wilful mis-declaration. The goods have been mis-declared as "Acid Oil" for "Palm Kernel Fatty Acid Oil". The Commissioner is justified in confirming the differential duty Confiscation And imposing fine in both the orders is justified in view of the fact that the total value of the goods in both the cases are valued more than Rs. 11.11 lakhs while the redemption fine imposed in Order-in-Original No. 249/97 is only Rs. 1,80,000. The total value of goods is Rs. 36,02,830 shown in OIO No. 250/97, and is confirmed. Penalty Under Section 112(a) of the Customs Act--The imposition of penalty of Rs. 50.,000 on S/Shri M, Ranganathan and G.T.V. Baloo does not require interference and same is confirmed. Mandatory Penalty Under Section 114A of the Customs Act of Rs. 11,77,646 imposed under OIO No. 249/97 and Rs. 11,77,373 imposed in OIO No. 250/97 is reduced to Rs. 5,00,000 each (Rupees Five Lakhs only) in terms of Apex Court judgment rendered in State of Madhya Pradesh v. Bharat Heavy Electricals. Both the orders otherwise are confirmed. ORDER S.L Peeran, Member (J)
1. In both these impugned orders, the modus operandi is same inasmuch as that M/s Kalyani Traders and M/s PNK Traders Pvt. Ltd. are represented by Shri M. Ranganathan and Shri G.T.V. Baloo. Both of them have filed respective Bills of Entry declaring the goods as "Acid Oil". The investigation led to seizure of documents and recording of statements and after due test of the samples, the item turned out to be "Palm Kernel Fatty Acid Oil/Distillate". Appellant had indulged in mis-declaration and had attempted to clear "Palm Kernel Fatty Acid Oil" in the guise of "acid oil".
2. In the Order-in-Original No. 249/97 dated 27.12.97 the Commissioner has dealt with Bill of Entry under which the consignment which had been sent by M/s G.T. Bhavani Trading from Malaysia represented by Shri G.T.V. Baloo of the supplier's firm. In his statement, he had clearly admitted about supplying the goods namely "Palm Kernel Fatty Acid Oil" to the appellant M/s PNK Traders Pvt. Ltd. represented by Managing Director Shri M. Ranganathan who happened to be his uncle and to M/s Kalyani Trading whose proprietor was Mr. M. Ranganathan. He has clearly admitted that he had requested his company to invoice "Palm Kernel Acid Oil" as "Soap Stock" so that he can save customs duty, that their actual export price of Palm Kernel Acid oil supplied was higher but in the invoices they had mentioned US $ 140 per MT. He admitted that he used to transfer the amount declared in the invoice to their company through normal banking channels, mostly on documents against the payment terms and the remaining uncleared amount would be handed over to him when he visited India; that he used to get a share in the profit both Kalyani Traders and PNK Traders (P) Ltd.; that his profit amount would alone to be handed over to him during his visit to India; that he supplied 18 nos. of 20' container loads of "Palm Kernal Acid Oil" in the name of "soap stock" to M/s Kalyani Traders and PNK Traders Pvt. Ltd. Chennai. He used to get chemical test reports from M/s Indelab, Malaysia by giving the samples of 'soap stock' in stead of Palm Kernel Acid Oil; that since market for Palm Kernel acid related products was highly competitive they had under-invoiced the value to save customs duty; that he was shown page Nos. 3 to 9 of file No. 5 that was seized from the importer's office and he signed on all the seized documents as a token of having seen him. He also admitted about the fax messages sent to Ranganathan on 12.4.97 wherein the details of transaction had been informed. Mr. Ranganathan also during the course of investigation admitted of having imported Palm Kernel acid oil from Malaysia and selling them to local traders. The details of all the admissions have been noted in the respective orders as culled out at the time of investigation. Appellant paid in the case of Kalyani Traders a sum of Rs. 3,73,922 towards differential duty and further presented, a demand draft of Rs. 2,24,550. Further a sum of Rs. 3 lakhs was paid on 23.7,97 and requested these amounts to be adjusted towards duty. Thus, he paid Rs. 8,98,492 in total towards differential duty on the undeclared portion of the actual cost of goods imported by him and the same has been noted in Order-in-Original No. 250/97 against Kalyani Traders.
3. In respect of the case booked on PNK Traders Pvt. Ltd. it has been noted in 010 No. 249/97 dated 27.12.97 that Ranganathan, Managing Director on behalf of PNK Traders Pvt. Ltd. paid an amount of Rs. 8,98,472 towards differential duty on the undeclared portion of the actual cost of goods.
4. The Commissioner in the respective orders has discussed the evidence on record, more particularly, the admissions made by G.T.V. Baloo and M. Ranganathan and also admissions pertaining to seized records, test report of Custom House laboratory and that of the test result obtained from Tamil Nadu Oil & Seeds Association has been relied on which clearly indicated the name of oil as Palm Kernel Acid oil. The Commissioner has also noted in the respective orders that the goods are Palm Kernel Fatty Acid Oil/distillate in terms of test results obtained from Custom House Lab and that of Tamil Nadu Oil & Seeds Association and that subject goods are used for manufacture of soaps from the technical literature available. It was found that Palm Kernel Fatty Acid Oil is obtained as by-product during the process of extraction of palmolein from palm kernels. Similarly, Palm Fruit Fatty Acid Oil is obtained as a by-product, during the process of extraction of palmolein from Palm Fruits. The price of Palm Kernal Fatty Acid oil is costilier of the two varieties of Acid Oils as the base materials viz. Palm kernals are prime raw materials and costlier than palm fruits. The Commissioner has noted about the correspondence between the buyer and seller and also the statements given by the proprietor of the importing company as well as the owner of the supplier company. It was noted that the seized records from the parties' business premises amply indicate a number of fax messages exchanged between the buyer and the seller indicating the commodity and the price and also payment of money through persons travelling to and from throughout the country. He rejected the arguments and appellant's counsel that the statement had been obtained under duress. He has noted that the party made payment towards duty in advance voluntarily and no evidence to show that the party was coerce had been brought on record. He also noted that in terms of Hon'ble Madras High Court's judgment rendered in Madanlal Steel Industries v. UOI wilful mis-declaration of the description of the subject goods and under-invoicing the goods had been proved. Thus, the goods were liable for confiscation for payment of fine penalty of Rs. 50,000 each on Mr. Ranganathan, Proprietor of Kalyani Traders and Shri G.T.V. Baloo under Section 112(a) of the Customs Act, 1962. In Order-in-Original No. 250/97 and OIO No. 249/97 he has imposed a penalty of like sum of Rs. 50,000 on these two parties besides confirming the differential duty and also imposing like sum of Rs. 11,11,646 towards penalty under Section 114 A on PNK Traders Pvt. Ltd. Likewise, he has imposed a penalty of Rs. 11,77,646 on Kalyani Traders under Section 114A of the Customs Act in equal amount of differential duty liable to be paid.
5. We have heard Ld. Counsel Shri R. Sudhakaran and Shri G. Sreekumar, Ld. SDR.
6. Ld. Counsel submitted that in all these appeals arising from two separate Orders-in-Original, the facts are identical. He points out that in the respective Orders-in-Original, the Commissioner has noted about four Bills of Entry in each of the orders in which the goods are confiscated. He contends that in terms of test results the item happened to be "acid oil" which are nothing but "soap stock". He submitted that acid oil is of generic name and the classification has not been disturbed under chapter heading 3828.90. He submitted that there was no evidence of under-valuation and the statement had been recorded under coercion and the statement had been recorded under coercion and was also deposits were made with regard to differential duty only on the pressure brought by the department. The department has not produced any evidence of contemporaneous imports showing higher value of Palm Kernel Acid Oil from Malaysia. Mere reliance on fax messages and other documents seized from the premises of both the units and their admission is not sufficient to uphold the charge of under-valuation. He further submitted that appellants without prejudiced to their arguments had deposited the amounts even before issue of show cause notice. Therefore, in a circumstance like this equal amount of penalty under Section 114A is not imposable and in this regard he relied on the Apex Court judgment rendered in State of Madhya Pradesh v. Bharat Heavy Electricals . It has been laid down in this judgment that maximum amount of penalty need not be levied and the assessing authority has discretion to levy lesser amount depending upon the facts and circumstances of each case. He contended that the appellant had immediately deposited the amounts and having suffered immeasurably in terms of paying heavy demurrage and still certain goods are uncleared, therefore in a circumstance like this, equal amount of penalty would be punitive and harsh.
7. Ld. SDR took us through the records and pointed out that all the statements had been very clear and categorical and inasmuch as that there was admission about the modus operandi in mis-declaring the goods as "soap stock" when the same were "Palm Kernel Fatty Acid Oil". He pointed out to the admissions made by GTV Baloo who has stated that the goods were Palm Kernel Acid Oil and that they had deliaberately mis-declared the same to avoid payment of higher customs duty. He also stated that he advised Ranganathan to pay duty. Ranganathan had also admitted about the under-valuation and mis-declaration and had paid amounts in both the cases. He submits that in this case no leniency is required to be shown as mis-declaration has been proved beyond doubt. He prayed for dismissal of all the appeals as the Commissioner has already fixed a lesser amount of Redemption Fine and individual penalties.
8. We have carefully considered the submissions made by both sides and we perused the records. In all these appeals arising from two separate Orders-in-Original passed by Commissioner of Customs, Madras. The matter is identical. M/s PNK Traders Pvt. Ltd. and M/s Kalyani Traders are represented by Mr. Ranganathan. He had filed three Bills of Entry on behalf of PNK Traders and four Bills of Entry on behalf of M/s Kalyani Traders. In all these Bills of Entry the item has been declared as "Acid Oil" while the investigation and the test results obtained from Custom House lab and from Tamil Nadu Oil & Seeds Association clearly indicated that the goods imported were "Palm Kernel Fatty Acid Oil". Appellants had made clear admission about the method and adopted the modus operandi to declare the item as "Acid Oil" with a view to avoid payment of higher customs duty. The statements of GTV Baloo, who is the supplier, is a detailed one and is corroborated by details from the seized records, fax details and also the statement given by Ranganathan. There was a clear consensus and meeting of mind to evade payment by wilful mis-declaration. The records of admission is very categorical and clear and specific admission has been made by him. There is no attempt by the Custom Officers to extract the statement under coercion or under duress. Ranganthan also immediately deposited a sum of Rs. 8,98,472 against PNK Traders Pvt. Ltd. as noted in OIO No. 249/97 and an amount of Rs. 8,98,472 in the case of Kalyani Traders as recorded in 010 No. 250/97 dated 27.12.98. Both the orders clearly discusses the detailed evidence which establishes the fact of wilful mis-declaration and about the goods being "palm kernel acid oil/distillate" and not mere "acid oil". Therefore, it is established from the evidence on record that PNK Traders & Kalyani Traders had clearly mis-declared the goods in the Bill of Entry and they had in fact invoiced at low price against the transaction value. The fact of higher value was disclosed from the documents seized. The supplier GTV Baloo has clearly admitted extra payment which has been received by him and about his close relationship with the purchaser namely Ranganathan who happened to be his uncle. He also admitted in the statement about the fact of mis-declaration and under-valuation to save customs duty. In his statement, he clearly stated that he advised Ranganathan to deposit the differential duty. The differential duty has been also deposited. Hence, the Commissioner's order confirming the differential duty in both the orders is justified and requires to be upheld.
9. The order of confiscation and imposing fine in both the orders is justified in view of the fact that the total value of the goods in both the cases are valued more than Rs. 11.11 lakhs while the redemption fine imposed in Order-in-Original No. 249/97 is only Rs. 1,80,000. The total value of goods is Rs. 36,02,830 shown in OIO No. 250/97. Therefore, the redemption fine imposed against respective value shown in the Bill of Entry is very low and same is required to be confirmed.
10. So also the imposition of penalty of Rs. 50,000 on S/Shri M. Ranganathan and G.T.V. Baloo is terms of Section 112 (a) in respect of both the orders-in-original is proper and does not require interference and same is confirmed.
11. Insofar as the penalty of under Section 114A of Rs. 11,77,646 imposed under OIO No. 249/97 and Rs. 11,77,373 imposed in OIO No. 250/97 is concerned, we notice that 100% has been imposed as penalty under Section 114A. In terms of Apex Court judgment rendered in State of Madhya Pradesh v. Bharat Heavy Electricals (supra), the assessing authority has a discretion to levy lesser amount depending on the facts and circumstances in each case. In the present case, the parties have immediately deposited the differential duty of Rs. 8,98,472 respectively. In that view of the matter, the prayer for reduction of mandatory penalty in both the cases is justified. The mandatory penalty is reduced to Rs. 5,00,000 each (Rupees Five Lakhs only), Both the orders otherwise are confirmed. Appeals are disposed of in the above terms by confirming the redemption fine and penalty under Section 112(a) of the Customs Act on Ranganathan and GTV Baloo. Mandatory penalty in both appeals under Section 114A on appellants is reduced to Rs. 5,00,000 each. The appeals are disposed of accordingly.