2014 (9) TMI 1039 - AT - Customs

Demand of Differential custom duty - Undervaluation - Import of spices by declaring custom value less than actual price - Investigation held and different confessions taken from agent and foreign suppliers - Held that the cross- examination of the confessionary statement was conducted after more than 5 years which is clearly afterthought therefore can not be taken into account for the purpose of defence of the appellant. Also in the confessionary statement of the manager of the appellant that he was actively involved in all the activities of the appellant there is no dispute at all. Apart from the statements evidence was also recovered from the agent that the price of the goods indicated in the public ledger clearly suggests the undervaluation has been made by the appellant. Therefore once the witnesses admitted the undervaluation and accepted the actual price contained in the fax messages of foreign supplier then the said admitted price become the transaction value and there is no need to resort to price of contemporaneous import so the differential demand of custom duty on such value and corresponding interest and penalties imposed under Section 114(a) of Customs Act 1962 are upheld. Confiscation and redemption fine - Held that confiscation of goods can only be made of physically available goods if the same is seized and either lying under seizer or if provisionally released. As here the goods were not physically available for confiscation and redemption the confiscation can not be made and redemption fine can not be imposed supported by various decisions. -Decided partly if favour of appellant

Issues Involved:
1. Undervaluation of imported goods.
2. Confiscation of goods and imposition of redemption fine.
3. Imposition of penalties under Section 112(a) and Section 114A of the Customs Act, 1962.
4. Legality of penalties imposed on proprietors and individuals involved.

Detailed Analysis:

1. Undervaluation of Imported Goods:
The appellants, M/s. Saccha Soudha Pedhi, were accused of undervaluing imported spices such as Star Aniseeds, Cassia, White Pepper, Zanzibar Cloves, and Madagascar Cloves. The Directorate of Revenue Intelligence (DRI) conducted an investigation based on intelligence reports and found that the prices declared to customs were significantly lower than the actual transaction prices. Incriminating documents and confessional statements from key individuals, including Shri Bhumish Shah and Shri Ashok Raghuveer Goyal, supported these findings. The Commissioner confirmed the undervaluation and imposed differential custom duty, penalties, and interest.

2. Confiscation of Goods and Imposition of Redemption Fine:
The Commissioner confiscated the undervalued goods and imposed a redemption fine. However, the Tribunal found that the confiscation was not sustainable as the goods were not physically available for confiscation. Citing several case laws, including *INDU NISSAN OXO CHEMICAL INDUSTRIES Versus COMMR. OF CUS., KANDLA* and *DEE KAY EXPORTS Versus COMMISSIONER CUSTOMS, NEW DELHI*, the Tribunal set aside the confiscation and the corresponding redemption fines.

3. Imposition of Penalties under Section 112(a) and Section 114A of the Customs Act, 1962:
- M/s. Saccha Soudha Pedhi: The Tribunal upheld the penalties imposed under Section 114A, as the undervaluation was established through documentary evidence and confessional statements.
- Shri Shivkumar Raghuveer Goyal: The Tribunal found that imposing a separate penalty on the proprietor under Section 112(a) was not justified since the firm and the proprietor are a single entity. This view was supported by case laws such as *VINOD KUMAR GUPTA Versus COMMISSIONER OF CENTRAL EXCISE* and *BIMAL KUMAR MEHRA Versus COMMISSIONER OF CUSTOMS (IMPORT), MUMBAI*. The penalty was thus dropped.
- Shri Ashok Raghuveer Goyal: The Tribunal upheld the penalty of Rs. 12,50,000 under Section 112(a), finding it reasonable given his active involvement in the undervaluation scheme.
- Shri Bhumish Shah: The Tribunal upheld the penalty of Rs. 16,00,000 under Section 112(a), rejecting the argument that the penalty was harsh considering his minor commission. The Tribunal emphasized that the penalty is based on the nature of the offense and the quantum of duty evaded, not the benefits accrued to the individual.

4. Legality of Penalties Imposed on Proprietors and Individuals Involved:
The Tribunal reiterated that penalties cannot be imposed on both the proprietorship firm and the proprietor for the same offense, aligning with the legal precedent that a proprietorship firm and its proprietor are not separate legal entities. This principle was applied to drop the penalty on Shri Shivkumar Raghuveer Goyal, the proprietor of M/s. Saccha Soudha Pedhi.

Conclusion:
The Tribunal partially allowed the appeal of M/s. Saccha Soudha Pedhi by setting aside the confiscation and redemption fines but upheld the differential duty and penalties under Section 114A. The penalty on Shri Shivkumar Raghuveer Goyal was dropped, while the penalties on Shri Ashok Raghuveer Goyal and Shri Bhumish Shah were upheld. The appeals were disposed of accordingly.

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