Custom, Excise & Service Tax Tribunal
Transworld Polymers Pvt. Ltd vs Commissioner Of Customs on 13 February, 2018
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT No. I Appeal No. C/903/2008 Transworld Polymers Pvt. Ltd. Appellant Vs. Commissioner of Customs Nhava Sheva Respondent
(Arising out of Order-in-Original No. 51/08 CC(I) JNCH dated 26.05.08 passed by Commissioner of Customs (I), Nhava Sheva. Appeal No. C/904/2008 Suresh Kumar Agarwal Appellant Vs. Commissioner of Customs Nhava Sheva Respondent (Arising out of Order-in-Original No. 49/08 CC(I) JNCH dated 26.05.08 passed by Commissioner of Customs (I), Nhava Sheva. Appeal No. C/905/2008 Ramesh Dalmia Appellant Vs. Commissioner of Customs Nhava Sheva Respondent (Arising out of Order-in-Original No. 49/08 CC(I) JNCH dated 26.05.08 passed by Commissioner of Customs (I), Nhava Sheva. Appeal No. C/908/2008 Ramesh Dalmia Appellant Vs. Commissioner of Customs Nhava Sheva Respondent (Arising out of Order-in-Original No. 52/08 CC(I) JNCH dated 26.05.08 passed by Commissioner of Customs (I), Nhava Sheva. Appeal No. C/909/2008 Avinash Kumar Garg Appellant Vs. Commissioner of Customs Nhava Sheva Respondent (Arising out of Order-in-Original No. 51/08 CC(I) JNCH dated 26.05.08 passed by Commissioner of Customs (I), Nhava Sheva. Appeal No. C/910/2008 Ramesh Dalmia Appellant Vs. Commissioner of Customs Nhava Sheva Respondent (Arising out of Order-in-Original No. 49/08 CC(I) JNCH dated 26.05.08 passed by Commissioner of Customs (I), Nhava Sheva. Appeal No. C/911/2008 Hukumchand & Sons Appellant Vs. Commissioner of Customs Nhava Sheva Respondent (Arising out of Order-in-Original No. 50/08 CC(I) JNCH dated 26.05.08 passed by Commissioner of Customs (I), Nhava Sheva. Appeal No. C/912/2008 Ramesh Dalmia Appellant Vs. Commissioner of Customs Nhava Sheva Respondent (Arising out of Order-in-Original No. 50/08 CC(I) JNCH dated 26.05.08 passed by Commissioner of Customs (I), Nhava Sheva. Appearance:
Shri Anil Balani, Advocate for appellant Ms P. Vinitha Sekhar, Jt. Commr (AR) for respondent CORAM:
Honble Mr Ramesh Nair, Member (Judicial) Honble CJ Mathew, Member (Technical) Date of Hearing : 13.02.2018 Date of Decision : 07.03.2018 FINAL ORDER NO. A/85502-85509/18 Per: Ramesh Nair These appeals are directed against orders-in-original passed by Commissioner (Import) wherein the learned Commissioner reassessed the bills of entries and enhanced the value, confirmed the differential duty demand and confiscated the goods with option to redeem the same on payment of redemption fine. Equivalent amount of penalty was imposed under section 114A and personal penalties was also imposed.
2. The fact of the case is that the appellants have imported the goods from M/s. Delbi Fibres S.R.L, Italy and declared the value as per the invoices produced by the appellants to the Customs authorities. Directorate of Revenue Intelligence carried out an investigation and enquiries were conducted by the High Commission of India, London with Italian Customs authorities on the basis of the information and documents produced by the Italian Customs authorities. It was revealed that during the period 2002-04 Italian supplier M/s Delbi Fibres S.R.L., Italy had supplied the consignments of synthetic waste to the appellants. On the basis of the documentary evidence, the value was reassessed and consequently enhanced. The demand of duty, redemption fine and penalties were confirmed. Being aggrieved by the order-in-original, the appellants have filed the present appeals.
3. Shri Anil Balani, learned Counsel appearing on behalf of the appellants submits that against the supply of goods, the supplier M/s Delbi Fibres SRL, Italy, issued the invoices and declaration of value was made in the bill of entry as per the invoices but there is no under-valuation of the goods. As regard the evidence obtained from Italian Customs authorities through High Commission of India, U.K, he pointed out various discrepancies such as the invoice obtained by the High Commission is not stamped or signed and the statement of M/s Delbi Fibres given by the Italian Customs does not disclose anything regarding the valuation, therefore, the said evidence cannot be used against the appellants for enhancing the value. He submits that contemporaneous import produced by the appellants is in their favour therefore on that basis also the price declared by the appellant is correct and the same cannot be disputed. The appellants have remitted the payment only in respect of the value declared by them and shown in the invoice by their supplier. Therefore, there is no excess payment over and above the invoice was remitted to the supplier M/s Delbi Fibres. The evidence produced by the department alone cannot be taken as evidence for enhancing the value and rejecting the declared value. He points out that the show-cause notice proposed the value under rule 8 of the Customs valuation (Determination of Price of Imported Goods) Rules, 1988 whereas the impugned order enhancing the value was confirmed under rule 4 of Customs Valuation Rules, 1988. For this reason also enhancement of value will not sustain. 3.1 As regards confiscation, he submits that the goods were not available for confiscation therefore the redemption fine was wrongly imposed in view of the Larger Bench decision in the case of Shiv Krupa Ispat Pvt. Ltd vs. Commissioner of CX & Cus. 2009 (235) ELT 623 (Tri. LB). 3.2 As regards the appeals of Shri Ramesh Dalmia, learned Counsel submit that his son Shri Aditya Dalmia, vide letter dated 07.08.2017, intimated this Tribunal that his father has passed away on 12th January 2016. Death certificate was also produced.
4. Ms. Vinitha Sekhar, Joint. Commissioner learned A.R. appearing on behalf of Revenue submits that various documents were produced by the Italian Customs from the supplier M/s. Delbi Fibres and statement was also recorded from the supplier. As per the documents produced by Italian Customs which was obtained by High Commission of India, U.K. and forwarded to Directorate of Revenue Intelligence, all the documents are co-relating to each other such as invoice, bill of lading, bill of export etc. Co-relation chart was also produced. These documents clearly show that the separate invoices were produced by the appellants to the Customs authorities and the invoices and other documents obtained from the supplier showing the higher value. Therefore, there is clear under-valuation of the goods on the part of the appellants. Therefore, there is no infirmity in the impugned order enhancing the value and confirmation of duty and redemption fine and penalty. She also relies on the following judgements:-
(a) J.K. Steel v. Union of India 1978 (2) ELT J355(SC)
(b) Best & Co v. CC 2009 (239) ELT 294 (Tri. Del)
(c) Ram Khazana Electronics v. CC 2003 (156) ELT 122 (Tri.Del)
(d) Konia Trading Co. v CC 2006 (199) ELT 644 (Tri.Del)
(e) Orson Electronics Pvt. Ltd. Collector of Customs 199 (82) ELT 499 (Tri.)
(f) Manohar Rajaram Chhabria and Orson Electronics v. Collector 1997 (93) ELT A133 (SC)
(g) Mahalaxmi International Exports v. CC 2004 (169) ELT 68 (Tri. Del)
(h) Dairy Den (India) Pvt. Ltd. v CC 2003 (153) ELT 663 (Tri. Mum)
(j) Sigma Electronics v. CC 1999 (110) ELT 1001 (Tri)
(k) Commissioner of Central Excise v. Pradyumna Steel Ltd. 1996 (82) ELT 441 (SC)
(l) Chandra Impex Pvt. Ltd.v. CC 2008 (224) ELT 583 (Tri. Del.)
(m) CC v. D. Bhoormull 1983 (13) ELT 1546 (S.C.)
5. We have carefully considered the submissions made by both sides.
6. The issue to be decided by us is that whether the documentary evidence produced by the High Commission of India, U.K. which was obtained from Italian Customs can be relied upon. If it can be relied upon, whether the value should be enhanced or otherwise. We find that the appellant declared the value as per the invoice shown to have been issued by M/s Delbi Fibres. However, on enquiry from the Italian Customs, documents were obtained from supplier M/s Delbi Fibres. Those documents are invoices, bill of exports, bill of lading and M/s Delbi Fibres in the said enquiry also submitted co-relation chart. On close scrutiny of these documents, we find that the invoice no. and date are matching with those invoices. Bill of export, bill of lading etc produced by M/s Delbi Fibres to Italian Customs authorities showing the higher value. 6.1 As regard authenticity of these documents, there cannot be any doubt for the reason that Italian Customs authority has obtained these documents directly from the supplier M/s Delbi Fibres and the same was obtained by the High Commission of India, U.K. From perusal of these documents, it cannot be said that these documents are authentic. 6.2 As regard the issue raised by the learned Counsel that the invoices was unsigned, we do not find much force in the arguments of the learned Counsel for the reason that other corroborative evidence of bill of lading, bill of export etc which are duly signed and showing the corresponding invoice details and the higher value. As per the chart prepared and submitted by M/s Delbi Fibres, it is clearly shown that even the total payment of value shown in the invoices provided by Italian Customs were made in two parts. Therefore, it is further established that the actual value shown in the invoice and documents submitted by M/s Delbi Fibres to the Italian Customs authorities is authentic and valid documents which cannot be questioned. On going through the reports submitted by the High Commission, the supplier of goods M/s Delbi Fibres in their statement have stated as follows:-
(d) The supplier of the goods, M/s. Delbi Fibres SRL in their statement to Italian Customs authorities have stated as follows:-
I confirm that among the clients for whom you have requested for the documentation,..for the period requested, I held the relations ascertained by you only with individuals. Therefore, I would like to specify that I have never held any relations with CANNON INDSTRIES PVIVATE LTD, Ludhiana (India) and for the period requested, not even with VIJAY CHEMICAL WORKS.
With regard to the cash collections, the money is directly delivered at my firm by the representative DALMIA di JAIPUR and / or by the clients themselves.
With regard to all of my Indian clients, I would like to specify that in the quality description of the product, I have been obliged to always use the same wording Synthetic Waste, whilst actually, in the transport document and in the Bill of Entry, the correct kind of the product sold was indicated.
For business reasons, and as directed by Mr. DALMIA di Jaipur (India), at times, a weight lower than the real one has been indicated. I have nothing else to declare. Details on the identity of Mr. Dalmia of Jaipur has not been ascertained from the Italian supplier. 6.3 From the above statement of M/s Delbi Fibres given by the Italian Customs authorities, it clearly reveals that all the documents submitted by the supplier are genuine and correct and considered as valid evidence. Therefore the same cannot be doubted.
6.4 Taking into consideration of the documents produced as evidence, we are of the view that all these documents are authentic and cannot be doubted. If it is so, it is established that the appellant had under-valued the goods. Accordingly, enhancement of the value and confirmation of differential duty demand and penalty related to such demand are correct and legal. Hence the same are upheld. As regard the redemption fine, we find that though the redemption fine was imposed but the goods were not available for confiscation. In the case of Shiv Krupa Ispat Pvt. Ltd. (supra) wherein it was held that in case the goods are not available and if the goods are not released provisionally, redemption fine cannot be imposed. Therefore, in the present case neither the goods were available nor the same were released on provisional basis therefore, redemption fine imposed by the adjudicating authority is not legal and proper. Hence we set aside the redemption fine.
6.5 As regard the appeal filed by Shri Ramesh Dalmia, asper the statement of the learned Counsel and the letter dated 07.08.2017 submitted by his son that Shri Ramesh Dalmia has passed away and the death certificate issued by Municipal Corporation, Jaipur, to this effect has also produced. Considering the plea that Shri Ramesh Dalmia has expired, all the appeals filed by him are abated and accordingly disposed of.
6.6 As regards the appeal filed by Shri Avinash Kumar Garg, it is observed that against the demand of duty, a penalty of Rs.10 lakhs was imposed under Section 114A of the Customs Act, 1962. However, additional penalty of Rs.3 lakh was also imposed on Shri Avinash Kumar Garg under Section 112A of the Customs Act, 1962. In this regard, we are of the view that it is settled position that once the penalty is imposed on the Proprietary concern, no separate penalty should be imposed on the Proprietor. Therefore, the penalty of Rs.3 lakh is set aside.
6.7 In the result
(i) The appeal filed by Shri Suresh Kumar Agarwal is dismissed.
(ii) The appeals filed by Shri Ramesh Dalmia are abated and disposed of accordingly.
(iii) The appeals filed by M/s Transworld Polymers Pvt Ltd, M/s. Hukumchand & Sons and Shri Avinash Kumar Garg are partly allowed in the above terms. (pronounced in Court on 07.03.2018) (C J Mathew) Member (Technical) (Ramesh Nair) Member (Judicial) nsk 1 12 Appeal No.C/903 to 905 and 908 to 912/08