Customs, Excise and Gold Tribunal - Mumbai
Shri Ashwin Doshi vs Commissioner Of Central Excise on 27 July, 2004
Equivalent citations: 2004(173)ELT488(TRI-MUMBAI)
ORDER
S.S. Sekhon (T), Member
1. The appellant has been imposed a penalty under Section 112 (a) of the Custom Act, 1962 and the appeal against them
2. After hearing both sides and considering the material it is found
a) The commissioner arrived at the following-
"It can he seen that the fact regarding undervaluation has been accepted by Shri. Ashwin Doshi and Shri. Doshi has also produced the Manufacturer's Invoice and voluntarily paid the differential duty worked out on the basis of discounted Manufacturer's Invoice and the duty paid by them at the time of assessment of the relevant Bills of Entry. Shri. Doshi also admitted that this is the financer of the consignments imported in the name of M/s. Goodrick Enterprise, and upon his specific instructions to the suppliers the goods have been underinvoiced. The retraction during submissions is only an after thought more so in view of the fact that duty on manufacturers invoice has been paid Moreover statement made before a Custom Officer is necessary and sufficient to be admitted. There is no proof given that there was coercion. As such I am inclined to accept the original submissions before the investigating Officer and reject the subsequent refraction as an after thought.
Therefore the appellant has been imposed a penalty of Rs. 1,50,000/- under Section 112(a) of the Customs Act.
b) After appreciating the role of the appellant herein, it can be safely concluded that his interest in the import was that of a financier. Therefore, he was reportedly assisting the import. The Custom Act definition of importer, envisages a person, natural or juristic, but not more than on e person at a time. The reliance of the Ld. Advocate on the decisions of Dhirubhai N. Shah (1995 (75) ELT 697 is well founded. There is nothing on record about the appellant herein having handled or have made any declarations on the Bill of Entry filed. No act of misdeclaration therefore could be brought, on him, which would call for a liability to confiscation and therefore penalty under Section 112(a).
c) When the adjudicator has imposed a penalty under Section 111(A) on the importer of M/s. Goodrich Enterprises for the grave charges, as mentioned in that section, there was no specific material thereafter to find liability on the financier, the appellant herein, without identifying and arriving at the specific acts under Section 112(a) on the appellants part.
2. Since the confiscation of the goods imported has been held to be only under Section 111(m) and the appellant had no role to play as regards the declarations to be made on the 'entry' as prescribed therein. An 'entry' as per definition applicable to Customs Act 1962 would they be Bills of Entry in their case. No declaration in material on BE by the appellant. The appellants, as admitted in the order impugned himself produced the manufacturers invoice and the department is relying upon the same, that is a positive evidence that the appellant did not hide or had interest to mis-declare. Penalty on him is not called for, since he has not done any act or omitted to do an act which have rendered the goods liable to confiscation ie. Misdeclared value on BE which was the responsibility & act of the importer i.e M/s. Goodrick Enterprises.
3. Consequently the order is set aside as regards penalty on the importer & this appeal is allowed.
(Pronounced in Court)