Custom, Excise & Service Tax Tribunal
M/S Golden Enterprises vs Cc, Ludhiana on 18 April, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
SCO 147-148, SECTOR 17-C, CHANDIGARH-160017
COURT NO.1
Appeal No. C/241/2016
[Arising out of the Order-in-Original No. 03/YDB/Commr/LDH/CUSTM/2016 passed by the CCE (Appeals), Ludhiana]
Date of Hearing: 09.03.2017
Date of Decision: 18.04.2017
For Approval & signature:
Honble Mr. Ashok Jindal, Member (Judicial)
Honble Mr. Devender Singh, Member (Technical)
M/s Golden Enterprises Appellant
Vs.
CC, Ludhiana Respondent
Appearance:
Shri. Jagmohan Bansal, Shri. Naveen Bindal, Advocates- for the appellant Shri. Atul Handa, AR- for the respondent , Coram:
Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. Devender Singh, Member (Technical) Final Order No: 60613 / 2017 Per Ashok Jindal:
This is the second round of litigation in the earlier round of litigation, this Tribunal set aside the adjudication order and the appeal was allowed.
2. The said order of this Tribunal was challenged by the Revenue before the Honble High Court of Punjab & Haryana in Customs Appeal No. CUSAP-2-2017. Vide order dated 09/12/2017, the Honble High Court remanded the matter back to this Tribunal to decide the issue relating to the finding in paragraph 4.2 (iii) (iv) (v) (a) and paragraph 4.5 of the impugned order dated 22.02.2016, therefore, this appeal is before us.
3. We find that the appellant also filed misc applications for implementation of the order dated 12.07.2016 of this Tribunal. As the matter has come up before this Tribunal again for re-consideration, therefore, the misc applications dated 07.12.2016 & 29.12.2016 filed by the appellant are disposed off as infructious.
4. The Revenue has also filed the misc application for bringing on records, the facts arising out of the order of Honble High Court of Punjab & Haryana dated 09.12.2017.
5. We have gone through the contents of the misc application dated 17.02.2017 filed by the Revenue and to that extent, the affidavit has also been filed by the Revenue on 06.03.2017. The facts of the said application have been verified from the records of the case which reveals that the facts of the case are contrary to the facts stated in the application, therefore, we find the facts stated in the applications are wrong and mis-leading. Accordingly, the application dated 17.02.2017 filed by the Revenue is dismissed.
6. In terms of the directions of the Honble High Court of Punjab and Haryana, we are dealing with the matter for consideration.
7. The disputed facts by the Revenue before the Honble High Court of Punjab and Haryana is reproduced as under:
4.2 (iii) The DRI officers had interrogated one Sh. Ghanshyam Sharma, forwarding and Logistic Agent at ICD, Ludhiana, who in his voluntary statement dated 08.02.2013 stated that he had handled the work related to clearance of imported goods from Customs for M/s Golden Enterprises, among the other importers; that he used to arrange transport for the importers includes M/s Golden Enterprises; that M/s Golden Enterprises had imported mainly RPO, PDO and Grease at ICD, Ludhiana; that M/s Ludhiana refineries and M/s Super Oil Company were the importing firms of Shri Vinay Kumar and Shri Sanjeev Kumar, both are brothers; that he had arranged transportation for the delivery of goods imported in the name of M/s Golden Enterprises and the goods imported in the name of M/s Golden Enterprises had been delivered either at the godown of M/s Super Oil Company or Shri Vinay Kumar or Shri Sanjeev Kumar at Ludhiana.
(iv) At the time of verification of IEC address of M/s Golden Enterprises it was not found occupied by M/s Golden Enterprises.
(v) The suspicion to the mis-declaratin and undervaluation of the goods and assessable values taken by the DRI for calculation of duties short paid were bases on:
(a) the revelations made Shri Ghanshayam Sharma, Forwarding and Logistic Agent at ICD Ludhiana that Shri Vinay Kumar is importing the good in the name of M/s Golden Enterprises.
4.5 Whether Sh. Vinay Kumar is actual controller of M/s Golden Enterprises I find that although the documents on the basis of which the impugned bills of entry has been filed are in the name of M/s Golden Enterprises, shown to be a proprietorship firm owned by Sh. P. K. Suri, but in his voluntarily statement dated 07.03.2013 and also during person hearing Shri Manoj Kumar Arora, of M/s Multi Wings Clearing and Forwarding Pvt. ltd. had admitted that M/s Golden Enterprises infact, did not exist at its declared address. He was told that Golden Enterprises was controlled by Sh. Vinay Kumar and since Vinay Kumar is known to him and Sh. Vinay Kumar also owned other firm namely M/s Super Oil Company, he did not object to forged IEC address/non occupation of IEC address.
Further, Sh. Ghanshyam Sharma in his voluntarily statement dated 08.02.2013 has admitted that M/s Golden Enterprises had imported mainly RPO, PDO and Grease at ICD, Ludhiana; that M/s Ludhiana Refineries and M/s Super Oil Company were the importing firms of Shri. Vinay Kumar and Shri Sanjeev Kumar, both borthers; that importing firm, M/s Golden Enterprises, was owned by one Shri. Pawan Kumar Suri but for all the jobs related to import made in the name of the firm M/s Golden Enterprises were entrusted to him by Shri Vinay kumar; that he had never met shri Pawan Kumar Suri; that Shri Vinay Kumar used to approach him for the clearance of import consignments from Customs; that he had received all his charges for clearances made for M/s Golden Enterprises from Shri Vinay Kumar; that he had arranged transportation for the delivery of goods imported in the name of M/s Golden Enterprises and the goods imported in the name of M/s Golden Enterprises had been delivered either at the godown of M/s Super Oil Company or Shri Vinay Kumar or Shri Sanjeev Kumar at Ludhiana. Sh. Ghanshyam Sharma further during PH also admitted that he did not know Sh. Pawan Kumar Suri but Shri. Vinay Kumar is known to him.
In view of clear cut admissions, I hold that the goods imported by M/s Golden Enterprises earlier were delivered to the godowns of firms controlled by Shri. Vinay Kumar and goods for import vide impugned bills of entry are also for delivery to Sh. Vinay Kumar and actually Sh. Vinay Kumar is the actual importer of these goods. Since the goods has been mis-disclared and undervalued to avoid any consequences Shri. Vinay Kumar used the IEC code of M/s Golden Enterprises. I observe that effecting imports/exports using IECs issued to others is in contravention of the Foreign Trade Policy and Foreign Trade (Development and Regulation) Act, 1992 and the Rules/Regulations made there under. Therefore, I hold that Shri. Vinay Kumar has contravened the provisions of section 11 of Foreign Trade (Development & Regulation) Act, 1992 and Rule 11 & Rule 14 of Foreign Trade (Development & Regulation) Rules, 1993. Accordingly, the goods imported by M/s Golden Enterprises, Delhi in contravention of the above provisions are liable to confiscation under Section 111(d) of the Customs Act, 1962. I hold that M/s Golden Enterprises, Delhi/ Shri Vinay Kumar have contravened the provisions of Section 11 of Foreign Trade (Development & Regulation) Act 1992 Rule 14 of Foreign Trade (Development & Regulation) Rules, 1993 & are, therefore, also liable to penalty under Sections 112/114A and 114AA of the Customs Act, 1962 .
8. We have gone through the records of this case and find that the invoices, bill of lading, packaging slip, bills of entry are in the name of M/s Golden Enterprises i.e. the appellant only. Moreover, there is no evidence on record that the appellant has purchased these goods on high seas sales basis. It has also been revealed from the records that during the course of drawn of samples, Sh. P. K. Suri proprietor of M/s Golden Enterprises the appellant himself was present and the samples were drawn under his signature only. In that circumstances, the observations in paragraph 4.2 (iii) (iv) (v) (a) and paragraph 4.5 of the impugned order are factually incorrect and have not concerned with the import of the impugned goods. In the impugned order, the adjudicating authority relied upon the statement of Sh. Ghanshayam Sharma and Sh. Manoj Kumar Arora. Shri. Ghanshayam Sharma in his reply categorically stated that he has not dealt with consignment of Golden Enterprises and he does not know Mr. P.K.Suri. He is neither CHA nor H Card holder nor G card holder so he has no authority to enter Customs area. Therefore, in any case, he was not dealing with any goods. Accordingly, the statement of Sh. Ghansyam Sharma have no relevance to the impugned goods.
9. Shri. Manoj Kumar Arora in his submissions at the time of hearing before adjudicating authority categorically disclosed that the goods were examined in the presence of Shri. P.K. Suri and he was interrogated by the Customs Officers.
10. On the one hand, the revenue is alleging that there is no Shri P.K. Suri/importer/appellant on the other hand, Shri Manoj Kumar Arora has stated that Shri. P.K.Suri was interrogated by the Customs Officers and samples were drawn in his presence. This fact is available on record. We also find that Shri P.K. Suri appeared before us on 28.02.2017, during hearing of the case to show that the Revenue is whimsically alleging that there is no such one Shri. P.k. Suri. Moreover, after passing the order of this Tribunal dated 12.07.2016, the appellant came forward to get the goods released and paid the duty and claiming ownership as the appellant has filed bills of entry. In that circumstances, we hold that the appellant (M/s Golden Enterprises owned by Shri. P.K. Suri) is the importer of the goods in question and the goods are required be delivered to the importer in whose name bills of entry filed. Further, as there is no other claimant of the goods, we hold that the appellant is actual owner of the said impugned goods. As the appellant has already paid duty in terms of the order dated 12.07.2016, wherein, the issue of mis-declaration and under valuations of goods has already been decided by this Tribunal in favour of the appellant, we set aside the impugned order and allow the appeal with consequential relief.
The Revenue is directed to release the goods immediately to the appellant.
With these terms, the appeal is disposed off.
(To be pronounced on 18/04/2017)
Devender Singh Ashok Jindal
Member (Technical) Member (Judicial)
rt
1
Appeal NO. C/241/2016
M/s Golden Enterprises Vs. CC, LUdhiana