Custom, Excise & Service Tax Tribunal
Gurpreet Singh vs Commissioner Of Customs on 22 October, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI COURT No. II Appln.No.C/S/99022, 99028 to 99031, 98288/13, 98481/13, 99033/13 APPEAL No.C/89313, 89315 to 89318, 88902, 89052, 89320/13 (Arising out of Order-in-Original CAO No.88/2013/CAC/CC(I)/ AB/Gr.VB dated 30/31.07.2013 passed by Commissioner of Customs (Imports), Mumbai) For approval and signature: Honble Mr. P.R. Chandrasekharan, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial) 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 should be released under Rule 27 of the :Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether Their Lordships wish to see the fair copy :Seen of the Order? 4. Whether Order is to be circulated to the Departmental :Yes authorities? ========================================
Gurpreet Singh Gulshan Kumar Arora Vijay Khurana Rakesh Madanlal Maggo Appellants Iqbal Singh Rajesh S Rele Ashwani Dham Subashchand Asri @ Langi Vs. Commissioner of Customs, Respondent Mumbai Appearance:
Shri.N.D.George & Prakash Shah, Advocate for appellant Shri.Ahibaran, Addl. Comm. (AR), for respondent CORAM:
Honble Mr. P.R.Chandrasekharan, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial) Date of Hearing : 22/10/2014 Date of Decision : 22/10/2014 ORDER NO Per: P.R.Chandrasekharan
1. There are eight appeals and stay petitions arising from Order-in-Original CAO No.88/2013/CAC/CC(I)/ AB/Gr.VB dated 30/31.07.2013 passed by Commissioner of Customs (Imports), Mumbai. Vide the impugned order, the learned adjudicating authority has confirmed a duty demand of Rs.44,76,593/- in respect of the goods cleared through the New Customs House, Mumbai under various bills of entry and ordered the same to be recovered from Shri Vijay Khurana, Shri Rakesh Maggo, Shri Subashchand Asri @ Langi, Shri Gulshan Kumar Arora, Proprietor M/s.J.B.Electronics, Shri Mahender Kumar Arora, Proprietor of M/s.Vidya Enterprises, Shri Iqbal Singh, Proprietor of M/s.Sahib Electronics and Shri Gurpreet Singh, Proprietor of Bharat Overseas by invoking the extended period of time under the provisions of Section 28 of the Customs Act 1962 along with interest thereon. Likewise, he has confirmed a duty demand of Rs.8,43,119/- in respect of the goods imported through Air Cargo Complex, Sahar and ordered the same to be recovered from Shri Vijay Khurana and Shri Venu Nair, Director of M/s.Vegha Shipping & Transport Pvt. Ltd. under the provisions of Section 28 of the Customs Act, 1962. He has also imposed penalties on all the appellants for contravention of provisions of Customs Act. He has held the goods liable to confiscation under the provisions of Sections 111(d) and 111 (m) of the Customs Act, 1962. Aggrieved of the same, the appellants are before us.
2. The learned Counsels for the appellants submit that the impugned order is bad in law as the duty is sought to be recovered from so many persons without ascertaining or apportioning the duty amount in respect of each person. Duty is sought to be recovered on joint and several basis. The learned Counsel also points out that there is a variance between the show-cause notice and the impugned order, inasmuch as in the show-cause notice it is proposed to recover the duty from only two persons in respect of a bill of entry, the common person being Shri Vijay Khurana, whereas in the impugned order, the duty is being demanded from several persons. The learned Counsel relies on the decisions of this Tribunal in the case of Shivkumar Agarwal Vs. CC (Prev), Mumbai vide final order No.A/626-628/13/CSTB/C-I dated 09/04/2013, No.A915-927/12/EB/C-II dated 26/09/2012 and No.A/1414-1416/13/CSTB/C-I dated 17/06/2013. In these decisions, this Tribunal had considered an identical issue and had held that duty cannot be ordered to be recovered on joint and several basis and duty liability has to be determined separately against each individual. The ratio of these decisions would apply to the facts of the present case. Accordingly, he pleads that the impugned order needs to be set aside and the matter remanded back to the adjudicating authority for consideration afresh for determination of duty liability of each person concerned with the transaction. He also pleads that all issues be kept open for consideration by the adjudicating authority.
3. The learned Additional Commissioner (AR) appearing for the Revenue reiterates the findings of the adjudicating authority.
4. We have carefully considered the submissions made by both the sides.
4.1 It is a settled position in law, as evident from the series of decisions relied upon by the learned Counsel for the appellants that duty cannot be demanded on joint and several basis. The liability of each person has to be determined separately and ordered to be recovered from each individual separately and therefore, the impugned order is clearly unsustainable in law. Therefore, the matter has to go back to the adjudicating authority for fresh consideration for determination of the facts as to who is the person responsible for payment of duty in respect of each bill of entry. If more than one person is found to be responsible, then the liability of each person has to be determined separately. Thereafter, the adjudicating authority has to consider the roles played by others to see that if they are liable to any penalty under the provisions of the Customs Act.
5. Thus, the appeals are allowed by way of remand. All issues are kept open. Stay petitions also stand disposed of.
(Dictated in Court) (Ramesh Nair) Member (Judicial) (P.R. Chandrasekharan) Member (Technical) pj 1 5