Customs, Excise and Gold Tribunal - Mumbai
Mehta Trading House Pvt. Ltd., S.B. ... vs Commissioner Of Customs (Import), ... on 8 November, 2001
JUDGMENT
J.H. Joglekar, Member(T)
1. These three applications relate to three appeals filed against the common order of the Commissioner of Customs (Adjudication) Mumbai. These are therefore dealt with vide this single order.
2. M/s. Mehta Trading House Pvt. Ltd. (hereinafter called as MTH imported glass Chatons S.B. Mehta and R.S. Mehta are directors in the Company of MTH. The Company imported such Chatons in 16 consignments between April 1991 to September 1995. In each case the goods were described as stock-lots and the same value of Austria Shilling 60 per kilo was declared. Each consignment was cleared after due examination. In certain cases queries were raised and settled. No samples were kept by the Customs of goods imported in any of the consignments. Subsequently on intelligence searches and inquiries were conducted from October 1995 onward. Statements were recorded. Faxed invoices apparently covering goods imported in the 16th Consignment cleared vide Bill of Entry dt. 4.9.96 were recovered. At the end of the investigation show cause notice 25.3.95 was issued. The allegation was that the goods earlier imported were not stock-lots but were prime goods. The value of these consignments was calculated on weighted average basis. The proceedings show that a sample of the goods imported by M/s. MTH was lying with the CHA. These were produced before Customs by Shri Chauhan an employee of the CHA. From his memory he described the composition of all the earlier consignments imported. Based on this statement the value was worked out for the first 15th consignment. As far as the 16th consignment was concerned, out of the two invoices, reliance was placed upon one and for the goods covered under the other invoice, the average value system was extended. Show cause notice alleged the total value of all consignments at Rs. 116,48,86,327/- and the the differential duty of Rs. 127,80,19,829/- was demanded. The allegations as to penalty were also made. The fact of voluntary deposit of Rs. 1.5 crores by the company was also noted.
3. The Commissioner on hearing the persons concerned passed orders. He noted a statement earlier made by Shri S.B. Mehta to the effect that during the period of importation of the consignments, the price was not uniform at ATS 60 per kg. but arranged between ATS 110 during 1990-91 to ATS 300 during 1994-95. He adopted the respective value for the first 15 consignments. For the 16th Consignment he adopted the value as shown in the faxed invoices seized from the office of the Company. In this manner he evaluated the goods at Rs. 3,81,44,307/- and confirmed the duty of Rs. 2,62,61,129/-. The amount of Rs. 1.5 crores deposited was ordered to be adjusted. Penalties of Rs. 2.5 crores each were imposed upon MTH and Shri S.B. Mehta. Penalty of Rs. 1.5 crores was imposed on Shri R.H. Mehta. Three appeals were filed and also the present applications seeking waiver of predeposit of duty ad also the penalties.
4. Shri Nankani submits that whereas the show cause notice projected a demand which was based on the valuation as per the price list, in confirming the differential duty on the basis of the statements of Shri S.B. Mehta as also the facts invoices under seizure, the Commissioner had exceeded the scope of the show cause notice. He also claimed that the entire manner of calculation on the weighted average bases was wrong. There was no proof that the chatons produced by the CHA clerk were from the stock lots imported by Ms. MTH. He further submits that the composition as per the clerk's memory could not from basis of afore mentioned averaging. He submitted that the appellants had requested for permission to cross-examine the clerk of the CHA which as not acceded to. He further submitted that each consignment was examined by the Customs. When the claim of the importer that the goods were stock lots was accepted by the Customs and value thereof was also accepted. He submitted that Mehta's statement was under duress, that it was retracted in good time and the denial of the retraction and the continued dependence by the Collector on his earlier statement is also not correct. As regards the financial hardship he submits the 1997 Balance Sheet of the firm showing losses as also the fact of deposit of Rs. 1.5. crores, with Customs. He also produces a certificate from the C.A. dt. 7.11.2001 to the effect that the Company was closed from April 1997 and that it had no income and had filed no return. It is certified that excluding the deposit with the Collector of Customs the Company has liability of Rs. 1.5. crores as against the assets on Rs. 14 lakhs.
5. Shri R.K. Pardeshi appearing for Revenue maintains that the remaining quantum of duty merits predeposit.
6. We have considered the rival submission. We find prima facia merit in the contentions made by the Ld. Counsel. We have also satisfied ourselves that directions for further payment would result in financial hardship upon the appellant company. We therefore waive the condition of predeposit of the remainder duty as also of the penalties imposed upon the three applicants and stay their recovery during the period of pendency of the appeals.
(Pronounced in Court)