2014 (2) TMI 287 - AT - Customs

Levy of penalty - concealment of facts or not - Demand of differential duty - Shortage in inventory - Goods cleared as samples - Exemption under notification 2/95-CE dt. 01-04-95 - Held that - A question can arise whether declaration of information in the books accounts is sufficient disclosure to the department and whether it can be taken as a case of suppression when the facts are reflected in the balance sheet but not specifically declared to the department - goods were cleared as samples and the position was reflected in the returns filed. Since what is demanded is only differential duty and since there was payment of duty as per notification 2/95-CE, it is apparent that the matter has been declared in the return and hence I am of the view that this was a case of bonafide mistake rather than an attempt to evade payment of duty. Though the Order-in-Original used the expression concealment of facts by way of book adjustment the order does not explain what book adjustment was done except to making a provision to reflect the shortage in the financial statement. This action is not an action of suppression but an action to deal with the issue in an open manner. Such approach is confirmed by the fact that they paid duty and interest without any protracted proceedings - No penalty.

Issues involved:
1. Change of cause title application
2. Appeal against penalty imposed on the respondent
3. Duty liability on shortage in inventory
4. Eligibility for exemption on imported components
5. Payment of duty and interest before show cause notice
6. Imposition of penalty under section 114A of the Customs Act
7. Verification of delay in filing appeal before Commissioner (Appeals)
8. Allegation of intention to evade payment of duty
9. Contesting penalty imposition on wrong availment of notification
10. Bonafide mistake in availing exemption under notification 2/95-CE
11. Disclosure of information in books of accounts and suppression of facts
12. Benefit of doubt to respondent regarding intent to evade payment

Analysis:

1. The judgment addresses the respondent's application for a change in cause title, allowing the change based on the submission of a fresh Certificate of Incorporation.

2. The appeal by Revenue challenges the Commissioner (Appeals) order setting aside the penalty imposed on the respondent. Revenue contests the delay in filing the appeal and argues that the respondent did not verify the factual submission regarding the delay.

3. The case involves duty liability on shortages in inventory found in the balance sheets of the respondent, who is a manufacturer of automotive components.

4. The issue of eligibility for exemption under notification 2/95-CE arises concerning imported components cleared by the respondent. Revenue argues that proper procedures were not followed, leading to a demand for duty payment.

5. The respondent paid the duty and interest amounts before the issuance of the show cause notice, which is highlighted in the judgment.

6. The adjudicating officer confirmed the duty amount, interest, and imposed a penalty under section 114A of the Customs Act. The Commissioner (Appeals) set aside the penalty, leading to the appeal by Revenue.

7. The judgment discusses the verification of the delay in filing the appeal before the Commissioner (Appeals) and the discretion exercised by the Commissioner in condoning the delay.

8. Revenue alleges the respondent's intention to evade payment of duty based on the delay in payment despite being aware of shortages in goods.

9. The Ld AR argues that the respondent wrongfully availed exemption under notification 2/95-CE, and penalty imposition is justified for such actions.

10. The respondent's advocate contests the penalty imposition, emphasizing that they are not challenging duty liability and interest but contesting the penalty.

11. The judgment deliberates on the disclosure of information in books of accounts and whether it constitutes suppression of facts, especially regarding clearances as samples.

12. Considering the manufacturing activity scale and the respondent's explanations, the judgment leans towards giving the benefit of doubt to the respondent regarding any intent to evade payment, leading to the dismissal of Revenue's appeal.

This comprehensive analysis covers all the issues involved in the legal judgment, providing detailed insights into each aspect addressed in the case.

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