Custom, Excise & Service Tax Tribunal
Cc, Delhi-Iii vs K.L.Sharma & Sons on 21 August, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI COURT NO. IV SINGLE MEMBER BENCH Appeal No. C/50138/2014 (Arising out of OIA No.511/SVS/GGN/2013 dt.13.09.2013 passed by the CCE(Appeals), Delhi-III, Gurgaon) CC, Delhi-III Appellants Vs. K.L.Sharma & Sons Respondent
Appearance:
Shri B.B.Sharma, DR for the Appellants None for the Respondent CORAM:
Hon'ble Mr. Manmohan Singh, Member (Technical) Date of Hearing/decision: 21.08.2014 FINAL ORDER No.53287/2014 Per MANMOHAN SINGH:
It is seen that the respondents have not been cooperating as they have not appeared for hearing on 23.3.2014 again on 28.4.2014. Further on 28.4.2014 the notice was issued for 25.6.2014 giving sufficient time. However, on 21.08.2014, they have not appeared again. It appears the respondents are not interested in judicial process and accordingly it is decided to take up the appeal with the assistance of ld.DR.
2. Revenue has come in appeal against OIA No.511/SVS/GGN/2013 dt.13.09.2013 passed by the Commissioner(Appeals) wherein the Commissioner (Appeals) has dropped the proceedings against M/s.K.L.Sharma & Sons.
3. From the grounds of appeal filed by the Revenue, it is observed that they have come up in appeal on three grounds, namely, first on mis-declaration of contents. Actually in the bill of lading, description of goods given as ear buds, brush and ear cap whereas the same were found cosmetics, electrical LNBs, goggles and watches, electrical items etc. Second ground is undervaluation and third ground is importation in the name of partnership firm which was non existence at that relevant time.
4. From the perusal of the facts, it comes out that the goods were imported in the name of M/s.K.L.Sharma & Sons. But on examination, it was noticed that the goods were actually being smuggled which were cosmetics, electrical LNBs, goggles and watches etc which were not declared in the bill of lading. Further no bill of entry was filed by the importer. Information was received that goods are being smuggled and mis-declaration has been made. Later consignment was taken for examination in the presence of panchas. On examination of the goods, it was found that the goods were misdeclared and the details of which was given in panchnama dated 10.5.2011 in annexure 1 to the panchnama which reads as under:-
S.No. Description of goods Packet Quantity 1 Classic Flexible bend Toungue cleaner A-2 to 31 8928 pcs.
2.
Professional personal care safety buds B-1 to 100 12000pcs.
3. Professional personal care safety buds (100) C-1 to 100 24000pcs.
4. Ear Cover/cap D-1 to 30 36000pcs.
5. Universal single LNB E-1 to 133 13300pcs.
6. 114458-12 VDC, 40A/12VDC F-1 to 15 7500pcs.
7. Knitted underwear G-1 to 5 54.00pcs.
8. Watches H-1-2 255 pcs.
9. Goggles misc.
I-1-9 702 pcs.
10. Clips (Iron) J-1 6750pcs.
11Revlon.new complexion one step make up (SPF-15) K-1 to 100 14400 pcs.
12. Nivea lip care women L-1 to 101 87264pcs.
13. Nivea mens lip care & protection M-1 to 25 36000pcs.
14. Revlon matte lipstick N-1 to 34 24480pcs.
15. May belline whip lipstick 0-1 to 20 24000pcs
16. Revlon moisture stay lipstick P-1 to 48 48960pcs.
17. Garnier men power light intensive fairness face wash Q-1 to 10 2160pcs.
18. Garnier pure & light face wash & fairness face wash R-1 to 10 2880 pcs.
19. Apricot scrub with soothing elder flower S-1 to 30 4320 pcs
20. Olay natural white T-1 to 10 5760 pc.
21. Foundation ponds/may belline U-1 to 15 3240 pcs.
22. Oreal matte lipstick V-1 to 16 11520 pcs.
23. Dove new recover foundation W-1 to 5 540 pcs.
24. Ponds age miracle X-1 to 12 4320 pcs.
25. Maybeline angel fit flawless natural liquid foundation Y-1 to 10 2160 pcs.
26. Nivea apple & papaya Z 1 to 8 1536 pcs.
27. Olay chery vitamin C AB-1 to 8 1536 pcs.
28. Dove alove & vitamin C whiten & moister AC-1 to 8 1536 pcs.
29. Eoreal dermo expertise AD-1 to 6 1152 pcs.
30. Ponds age miracle daily refreshing cream AE-1 to 10 1200 pcs.
31. Vessace (Natural Spray) AF-1 to 2 240 pcs.
32Loreal paris (2 in 1) AG -1 to 2 720 pcs.
33. Loreal paris True match AH-1 to 6 810 pcs.
34. Loreal paris curl long meacara AI-1 to 2 1440 pcs.
35. Loreal paris eye liner liquid export water proof AJ-1 to 1 720pcs.
36. MAC ombre a poupiers eye shadow AK-1 to 1 288 pcs.
37. MFK select SPF-15 foundation AL-1 to 3 480 pcs.
38. AIGER eye shadow & eye liner AM-1 to 2 480 pcs.
39. Miracle somasic lancome paris AN-1 to 1 69 pcs.
40. MAC Eye liner liquadxpert AO-1 to 2 720 pcs.
41. Absoconding (Cream & powder (Misc.) AP-1 to 10 2820 pcs.
42. Ronxin Nail Polish AQ-1 to 3 2280 pcs.
43. Asorted perfumes AR-1 to 20 1685 pcs.
44. Elude whitening liquid makeup SPF-15/PA AS-1 to 4 576 pcs.
45. BULGARI pour home Combo AT-1 to 3 144 pcs.
5. It clearly came out that these goods were fraudulently imported and were misdeclared so that the goods could be smuggled without discharge of customs duty. Mensrea is clearly manifested that large quantity of smuggled goods have come. That establishes that importers were not forthcoming with bill of entry and were in search of opportunity to take goods out with connivance. Though lot of opportunity was given to the importer to appear before customs authorities but on one pretext or the other, they have not co-operated with the department. I find that it is clear case of mis-declaration and attempt to smuggled goods by the respondent and the goods have rightly been confiscated by the adjudicating authority. However, no penalty was imposed on partners as both partners were died at the time of adjudication.
6. Ld.DR raised the issue of dissolution of partnership concern when one partner has already died before importation and the importation under these firms was illegal as partnership stood dissolved. I agree with the contention raised by the Revenue. However, it is observed from the facts that second partner Shri Surinder Mohan Sharma also died during the proceedings. Market enquiry carried out with various buyers for ascertaining the value of the goods, the value of the goods has been ascertained to be Rs.38,28,261/- against declared value of Rs.8,12,715/-.
7. From the order of the Commissioner (Appeals), it comes out that natural legal heirs of the ex-partner of the firm namely, Smt. Prabha Sharma, wife of late Shri Sushil Kumar Sharma and Smt. Neelam Sharma, wife of late Shri Surinder Mohan Sharma by way of sworn in affidavit dated 01.12.2011 deposed that they are the legal heirs wives of the partners of the importing firm. Commissioner (Appeals) accepting the affidavit directed they should file bill of entry. However, as per submission of ld.DR that the firm stood dissolved even prior to importation. Further smuggling is observed. Accordingly there is no force in the findings of the Commissioner (Appeals) to allow the so called legal heir to file B/E and claim for imported goods which have been smuggled and later absolutely confiscated. Absolute confiscation is fully justified as goods were prohibited and could not be released provisionally under section 125 of the Customs Act, 1962. Goods are rightly confiscated absolutely.
8. In view of above, order of the Commissioner (Appeals) is set aside, appeal filed by Revenue is allowed.
(dictated & Pronounced in the open court) (Manmohan Singh) Member(Technical) mk 6