2014 (2) TMI 828 - AT - Customs

Evasion of antidumping duty - mis-declaration of country of origin in the import of vitrified tiles falling under CTH No.6907 - Imposition of interest and penalty - Interpretation of the definition of importer as given in Section 2(26) of the Customs Act, 1962 - Held that - there is no categorical admission of the appellant herein that he had financed the entire operation, on the contrary it is otherwise. In view of the factual finding hereinabove, we find that the adjudicating authority recording the finding as to the finances relating to import are done by the appellant, seems to be incorrect. It is also to be recorded that investigating authorities have not traced one Shri Danny of Singapore and recorded any statement. Definition of importer as mentioned in Section 2(26) of Customs Act, 1962 would not cover the appellant, as it is undisputed that the appellant had not filed any Bill of Entry - importer under Section 2(26) is a person who has filed the Bills of Entry for the clearances and has paid the Customs duty - Decided in favour of assessee.

Issues Involved:
1. Evasion of antidumping duty through mis-declaration of country of origin.
2. Determination of the actual importer under Section 2(26) of the Customs Act, 1962.
3. Validity of financial arrangements and their impact on the determination of the importer.
4. Admissibility and interpretation of statements and evidence in confirming the importer's identity.

Issue-wise Detailed Analysis:

1. Evasion of Antidumping Duty through Mis-declaration of Country of Origin:
The appellant was accused of evading antidumping duty by mis-declaring the country of origin for vitrified tiles imported from China. The investigation by DRI Ahmedabad revealed that the appellant was importing Chinese vitrified tiles, which were subject to antidumping duty, and falsely declaring them as originating from Malaysia using fake certificates from the Malay Chamber of Commerce. The adjudicating authority confirmed these findings and imposed penalties.

2. Determination of the Actual Importer under Section 2(26) of the Customs Act, 1962:
The central issue was whether the appellant could be considered the importer as per Section 2(26) of the Customs Act, 1962. The definition includes any owner or any person holding himself out to be the importer. The adjudicating authority concluded that the appellant was the actual importer based on various statements and evidence. However, the appellant contested this, arguing that the actual importers were the entities in whose names the Bills of Entry were filed, namely M/s Shobha Plastics Pvt. Ltd., M/s H.V. Ceramics, and M/s PFZ Corporation.

3. Validity of Financial Arrangements and Their Impact on the Determination of the Importer:
The adjudicating authority's decision was partly based on the appellant's role in financing the import operations. The appellant's statement indicated that the initial financing was arranged by one Shri Danny of Singapore, and subsequent consignments were financed through sales proceeds. The Tribunal found that the adjudicating authority misinterpreted the appellant's role in financing, as there was no categorical admission of financing the entire operation by the appellant.

4. Admissibility and Interpretation of Statements and Evidence in Confirming the Importer's Identity:
The appellant's statements and the evidence presented were crucial in determining the importer's identity. The Tribunal noted discrepancies in the adjudicating authority's interpretation of these statements. The appellant argued that the entities filing the Bills of Entry were the actual importers, supported by various judicial precedents. The Tribunal referred to several case laws, including Bimal Kumar Mehta Vs CC Mumbai and Dhirubhai N. Sheth Vs. CC Bombay, which established that the person filing the Bills of Entry and paying customs duty is considered the importer.

Conclusion:
The Tribunal concluded that the appellant could not be considered the importer under Section 2(26) of the Customs Act, 1962, as he did not file the Bills of Entry. The adjudicating authority's findings on the appellant's role in financing were also found to be incorrect. The impugned order was set aside, and the appeals were allowed. The Tribunal emphasized that the definition of an importer includes the person who files the Bills of Entry and pays customs duty, and in this case, it was the entities in whose names the Bills of Entry were filed.

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