Custom, Excise & Service Tax Tribunal
M/S. Rosy Blue (India) Pvt. Ltd vs Commissioner Of Customs Csi, Airport, ... on 17 October, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. C/663, 868/2012-Mum. (Arising out of Order-in-Original No. COMMR/PMS/ADJN/04/2012-13 passed by the Commissioner of Customs CSI (Airport), Mumbai ) For approval and signature: Honble Mr. P.S. Pruthi, Member (Technical) ============================================================
1. Whether Press Reporters may be allowed to see :
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 :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
authorities?
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M/s. Rosy Blue (India) Pvt. Ltd.
VS.
Commissioner of Customs CSI, Airport, Mumbai
:
Appellant
And
Commissioner of Customs CSI, Airport, Mumbai
:
Respondent
VS.
M/s. Rosy Blue (India) Pvt. Ltd.
Appearance
Shri Aqueel Sheerazi, Advocate for Appellant
Shri D.D. Joshi, Superintendent (A.R) for respondent
CORAM:
Mr. P.S. Pruthi, Member (Technical)
Date of hearing : 17/10/2014
Date of decision : 17/10/2014
ORDER NO.
The appellants and Revenue are in appeal against the same order in original under which a consignment of 299.33 carats of cut and polished diamonds imported by them was confiscated and allowed to be re-exported on payment of redemption fine of Rs.4 lakhs under Section 125 of the Customs Act, 1962. Whereas the appellants have appealed against the confiscation and consequent redemption fine, Revenues appeal is for imposition of penalty which was not imposed by the adjudicating authority.
2. Heard both sides and considered the submissions.
3. At the outset I may mention that Revenue has been careless in filing the appeal papers in that the wording of the review directions, the grounds of appeal and the relief claim in application form C.A.5 are not consistent. It would be advisable to see documents carefully before filing the appeal before CESTAT.
4. The facts are that the appellant exported a consignment of 485.370carats against Invoice No. SA/1111035 dt. 28.11.2011 vide Shipping Bill 08147 dt. 28.11.2011 and subsequently re-imported the same consignment under notification No. 94/96 and filed bill of entry accordingly. However, on examination of the goods at the time of reimport, two more packets containing 299.33 carats of diamonds said to be related to export under invoice No. SA/1111003 dt. 03.11.2011 were found. The said bill of entry No. 810 was filed on 8.12.2011. After a period of 8 days the appellants requested, on 21.11.2011, for amendment in Bill of Entry which was denied. The order of confiscation of the goods and redemption fine for re-export followed.
5. I have considered the facts and the submissions. It has been brought out in the grounds of appeal that these consignments were reimported on rejection by the customers in US. The packets containing 299.33 were stated to have been exported consignment against invoice No.1111003. But actually consignment of 1098.80 carats was exported against invoice No. 1111003. Therefore the claim of appellant that this consignment was reimported without accompanying documents due to oversight is not a plausible claim. Because only a part of the exported goods were brought back. It is also noted that that sales manager of the appellant received, on 1.12.2011, two separate Emails from US informing that they (customer in US) were sending back to goods covered by these export invoices No. SA/1111003 and SA/1111035. But what was received back (299.33 carats) were not the total consignment exported under invoice SA/1111003. The General Manager Shri Rahul Desai in his statement recorded on 29.12.2011 admitted that he received a call from his customers informing that they are returning the consignments. He also admitted during personal hearing that they have received Emails indicating that the goods covered under these invoices were being sent back to them. In view of these facts there is no doubt that there has been mis-declaration under Section 111(m) of the Customs Act, and Section 46 which requires the importer to declare the true description, contents and value in the Bill of entry. The contention of the Ld. Counsel is that there is no implication of mis-declaration there being no duty an import of diamonds, is a mitigating factor as also held by the adjudicating authority. In my considered view, diamonds being a very sensitive commodity its trading of may not have duty implication but can have other implications of money transactions. However the export invoice SA/1111003 contained 1098.80 carats. There is no correlation between the export quantity and the reimported quantity. Therefore, I see no reason to disagree with the findings of the Commissioner. I uphold the confiscation of the goods and the imposition of redemption fine of Rs.4 lakhs.
6. I find that the exporter in a letter to the appellants admitted that they had forgotten to include the 299.33 carats said to be related to the export invoice SA/1111003 dt. 3.11.2011, in the air way bill under which consignment of 485.37 carats was reimported. The appellants are a reputed company and repeatedly export and re-import diamond consignments. During the year 2011-12, out of the 68 orders placed by the same supplier, only 50 consignments were exported. In all 31 orders were cancelled and export consignments returned to the appellants prior to the consignments in dispute. There is no one to one co-relation with the consignments (consignment export) and the consignment of 299.33 carats imported which was not declared by the appellant at the time of import. Had there been complete co-relation between the export invoice and the import consignment, there could have been some justification for waiver of penalty. Therefore, I impose penalty of Rs.1,00,000/- (Rupees one lakh only) on the appellants under Section 112(iii) of the Customs Act.
7. The appeals are disposed in above terms.
(Dictated in court) (P. S. Pruthi) Member (Technical) Sm ??
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