Custom, Excise & Service Tax Tribunal
M/S B.V. Chinai & Co. (I) Pvt. Ltd vs Cc (C.S.I. Airport) Mumbai on 23 December, 2013
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. II
APPLICATION NO. C/S/1490/11
IN APPEAL NO. C/642/11
(Arising out of Order-in-Original/Appeal No. 109/Mumbai III/2011 dated 23.05.2011 passed by the Commissioner of Customs (Appeals) Mumbai III.)
For approval and signature: Honble Shri Anil Choudhary, 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 : CESTAT (Procedure) Rules, 1982 for Publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : yes of the order?
4. Whether Order is to be circulated to the Departmental : yes authorities?
M/s B.V. Chinai & Co. (I) Pvt. Ltd.
: Appellant
Versus
CC (C.S.I. Airport) Mumbai
: Respondent
Appearance Shri S.P. Joshi, Consultant : For Appellant Shri M.S. Reddy, Dy. Commissioner (A.R.) : For Respondents CORAM:
HONBLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) Date of Hearing : 23.12.2013 Date of Decision: 23.12.2013 ORDER NO.......................................................
Per: Anil Choudhary:
The appellant M/s B.V. Chinai & Co. (I) Pvt. Ltd. is a CHA. The appellant had filed a Bill of Entry on 31.07.2009 on behalf of its client M/s Silverline Jewellers Pvt. Ltd. Mumbai. The subject consignment was shipped vide invoice of the seller M/s Fifth Season, Italy. As per description in the invoice, the goods were mentioned as Bangle Mounting, Bracelet Mounting, Collar Mounting, etc. Further it was also mentioned in the said invoice that all goods are semi-finished for mounting. All these items are made of gold and as such as instructed by the importer, the appellant CHA mentioned in the Bill of Entry as Gold Mountings as the consignment contained the goods declared to be various mounting of jewellery items. Further as instructed by the importer, exemption in terms of Notification No. 62/2004 (Cus) was claimed. Vide Order-in-Original dated 16.12.2009 it has been held that the goods have been mis-declared as the goods in question were not mounting, but were jewellery having some mounting rings attached to them. It was held that the appellant CHA has aided and abetted in the mis-declaration, for taking benefit of the aforementioned Notification and accordingly held liable to penalty under Section 112(a) of the Act. By a common Order-in-Original the goods in question were ordered to be confiscated with liberty to redeem on payment of redemption fine of Rs. 1,50,000/- and a penalty of Rs. 50,000/- was imposed under Section 112(a) on the appellant CHA. Being aggrieved, the appellant carried the matter before the Commissioner (Appeals) who has upheld the imposition of penalty on the appellant by upholding the findings in the adjudication order. Being aggrieved the appellant has moved in appeal before this Tribunal.
2. The learned Counsel for the appellant states that in the facts and circumstances, the appellant has acted bona fide by following instruction of the importer. Attention is drawn to the letter dated 14.10.2009 written by the importer to the Additional Commissioner of Customs, wherein the importer has admitted that as per their instructions to the CHA, the CHA has declared the goods as gold mounting and claimed exemption of Customs duty in terms of Notification No. 62/2004 (Cus). It was further contented by the importer that there is no mala fide on part of the importer or any attempt to mis-declare the goods in question to evade Customs duty. Further the importer has sought permission to re-export the goods in question. Thus, in view of the responsibility owned by the importer for the declaration made in the Bill of Entry, no case of aiding or abetting in the alleged mis-declaration is made out against the CHA, and prays for setting aside the penalty imposed. Further, reliance is placed on the ruling of the Apex Court in the case of Northern Plastics Ltd. Vs. Collector of Customs & Central Excise - 1998 (101) ELT 549 (S.C.). In the said case the appellant imported jumbo roll of photographic colour film describing the same as Cinematographic Colour Film (unexposed positive) and claiming the exemption of Customs duty under the relevant Notification. On examination, the Customs department found to be colour film-jumbo rolls and therefore not entitled to benefit of exemption as claimed. It was held that merely because the appellants claimed that it was entitled to exemption in respect of Customs duty under another Notification, whereas, there was a separate exemption Notification in respect of colour jumbo films, it cannot be stated that declaration made in the Bill of Entry did not correspond with any other particulars of the imported goods. Thus the Revenue and the Tribunal, have erred in holding that by claiming benefit of exemption under the particular Notification which has been relied, do not apply to the imported goods, and the appellant had intentionally tried to evade payment of Customs duty.
3. The learned A.R. relies on the orders of the lower authorities and prays for putting the appellant to terms.
4. Having considered the rival contentions and in view of the matter related only to penalty, the matter is taken up for final disposal. In my considered opinion, in view of responsibly for the declaration made in the Bill of Entry, having been owned by the importer and in absence of any finding to the contrary, there is error in holding the appellant CHA as a party in the alleged mis-declaration, there being no case of aiding or abetting made out against the appellant. In this view of the matter, the penalty imposed under Section 112 (a) is set aside and the appeal is allowed with consequential relief, if any. The stay application is also disposed of.
(Dictated and pronounced in open Court) (Anil Choudhary) Member (Judicial) Sp 4