2017 (11) TMI 1703 - HC - Customs

Penalty u/s 114A of the Customs Act, 1962 - import of equipment - undervaluation - Held that - Section 114AA does not get attracted as sine qua non for invoking the said provision is that it must be established that a person knowingly or intentionally makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document, which is false or incorrect in any material particular, in the transaction of any business for the purposes of the Act. As noted herein before, when the Act itself has envisaged provisional assessment, it cannot be said that incorrect value of the imported goods per se amounts to any of the acts referred to in the said provision. In respect of design, engineering and technical supervision charges, the actual value of the services requires interpretation of the agreement and from the nature of the contract, which includes design, engineering and technical supervision charges, it is a matter of interpretation of contract as to whether value of those services form part of the value of goods and services and if so, how to quantify the same. Penalty not warranted and is set aside - appeal dismissed - decided against Revenue.

Summary

Issues:
Appeal against common order setting aside penalty, confiscation, and redemption fine under Customs Act, 1962.

Analysis:
1. The Revenue appealed against the common order dated 12-9-2014, challenging the setting aside of penalty, confiscation, and redemption fine under the Customs Act, 1962 by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore.

2. The Revenue raised questions of law regarding the correctness of setting aside penalties under various sections of the Customs Act, particularly in cases of undervaluation and short levy of duty, suppression of facts, and misdeclaration by importers operating under the Risk Management System.

3. The Senior Standing Counsel argued that penalties were rightly imposed for undervaluation in multiple import transactions to evade customs duty, emphasizing the detailed reasons provided by the Commissioner of Customs for penalty imposition.

4. On the other hand, the Counsel for the Respondent contended that the differential duty was paid before the issuance of the show cause notice, invoking provisions of Section 28 and 18 of the Act for provisional assessment and payment of duty, which led to the Tribunal rightly setting aside the penalty.

5. The Tribunal, in its order, highlighted the Respondent's prompt payment of the differential duty upon notification, submission of all necessary documents, and the bona fide nature of the transactions, leading to the setting aside of penalties related to advance payments and design/engineering charges.

6. It was concluded that the provisions of Section 114AA did not apply as there was no evidence of intentional false declarations, especially in cases of provisional assessments where incorrect valuation does not automatically trigger penalties.

7. The Tribunal's reasoning emphasized the need for interpretation of agreements and valuation rules regarding design, engineering, and technical supervision charges, indicating that penalties should not be imposed without clear evidence of deliberate concealment or fraudulent intent.

8. Ultimately, the Tribunal's decision to set aside the penalties was upheld based on sound reasoning, leading to the dismissal of the Revenue's appeal with no costs awarded.