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2019 (8) TMI 1791 - AT - CustomsSmuggling - cmounts already deposited by them during the course of investigation - misdeclaration of value of goods - contravention of provisions of IPR (Imported Goods) Enforcement Rules, 2007 - demand of differential duty on the imported goods - recovery under section 28(4) of the Customs Act, 1962 along with appropriate interest under Section 28AA ibid - absolute confiscation - levy of penalty under Section 112 or 114A of the Customs Act, 1962 - appropriation of amounts already deposited by them during the course of investigation - HELD THAT - The importers had misdeclared the value, but we also find that the value determined by the revenue also determined in arbitrary and on the basis of various assumptions and presumptions. Hence the quantum of undervaluation determined by the revenue can always be debated. Further it is fact that appellants have before the Commissioner asked for cross examination of various persons associated with market enquiry. In the present case, where the value has been determined on the basis of the market inquiry Commissioner should have normally allowed cross examination and supplied all the documents, which formed the basis of valuation to the appellants. In normal course for determination of the value, after allowing cross examination and supplying all, the documents to the appellant importers. However in view of specific concession made by the appellants counsel during the course of hearing that with the passage of time (nearly two years from date of importation), the goods have become junk and they do not intend to clear the same for DTA market, the issue in respect of the re-determination of the assessable value under Section 14 has become a mere technical and administrative formality and dispute. Suffice to say that appellant importer had misdeclared the goods in terms of value, quantity and description. For the misdeclaration of the goods in terms of value, quantity and description, it is held that goods are liable for confiscation under Section 111 (m) and (o) of the Customs Act, 1962. Since the goods have been intercepted and seized prior to the clearance of the goods, the proceedings against the said goods could have been initiated only under Section 124 of the Customs Act, 1962 and the goods confiscated under Section 125 (1) ibid. In case the goods not confiscated absolutely, the officer adjudging the case is required to give the option to redeem the goods against the redemption fine which needs to be determined by him - four Bill of Entries filed in the name of Appellant 2, Commissioner has imposed redemption fine of ₹ 17,00,000/-. However Commissioner has in the entire order not pointed out any reason for determining the redemption fine. Even if the extent of undervaluation is taken into account the total difference in the value as declared and the value as determined by the revenue in these proceedings is ₹ 39,00,762/-. Taking into account the value redetermined, the redemption fine imposed is much on higher side and we reduce the same to ₹ 3,50,000/- - six Bill of Entries filed in the name of Appellant 3, Commissioner has imposed redemption fine of ₹ 35,00,000/-. However Commissioner has in the entire order not pointed out any reason for determining the redemption fine. Even if the extent of undervaluation is taken into account the total difference in the value as declared and the value as determined by the revenue in these proceedings is ₹ 1,08,62,170/-. Taking into account the value redetermined the redemption fine imposed is much on higher side and we reduce the same to ₹ 7,00,000/-. The demand of duty made by invoking the provisions of Section 28, prior to redemption of the goods is totally premature - the proceedings for demand of duty under section 28(4) cannot be sustained prior to redemption of goods. Penalties imposed under Section 114A, Section 114AA and Section 117 of the Customs Act, 1962 on appellant 1, appellant 2, appellant 3, appellant 4, appellant 5 appellant 6 are set aside - Penalties imposed under Section 112 on appellant 1, appellant 2, appellant 3, appellant 4 and appellant 5 are upheld but are reduced. Upon death of proprietor of M/s Amit Enterprise (Appellant 3) the penalty proceedings against him abate - appeal disposed off.
Issues Involved:
1. Confiscation of goods under Section 111 of the Customs Act, 1962. 2. Demand of duty under Section 28(4) of the Customs Act, 1962. 3. Imposition of penalties under Sections 112, 114A, 114AA, and 117 of the Customs Act, 1962. 4. Validity of market enquiry and denial of cross-examination. 5. Proceedings against deceased individuals. Detailed Analysis: 1. Confiscation of Goods: The goods imported by the appellants were confiscated under Section 111 of the Customs Act, 1962, for misdeclaration of value, quantity, and description. The Commissioner held that the goods were liable for confiscation under Section 111(d), (f), (l), and (m) of the Customs Act, 1962, and imposed redemption fines for their release. The goods found in contravention of IPR (Imported Goods) Enforcement Rules, 2007, were confiscated absolutely. 2. Demand of Duty: The demand of duty under Section 28(4) of the Customs Act, 1962, was challenged by the appellants on the grounds that the goods were intercepted and seized prior to assessment, registration, and examination. The Tribunal agreed with the appellants, citing the Supreme Court's decision in Jagdish Cancer & Research Centre, and held that the demand of duty under Section 28(4) was premature and could not be sustained prior to the redemption of goods. 3. Imposition of Penalties: The Commissioner imposed penalties under Sections 112, 114A, and 114AA of the Customs Act, 1962. The Tribunal upheld the penalties under Section 112 but reduced them to 10% of the amounts imposed by the Commissioner. The penalties under Sections 114A and 114AA were set aside as the demand of duty under Section 28 was not upheld, and the Commissioner failed to provide sufficient evidence of fraudulent or false documents for penalties under Section 114AA. The penalty under Section 117 on the Director of the Custom Broker was also set aside due to lack of specific contravention of the Customs Act. 4. Validity of Market Enquiry and Denial of Cross-Examination: The appellants challenged the market enquiry's validity and the denial of cross-examination. The Tribunal noted that the Commissioner should have allowed cross-examination and provided all documents forming the basis of valuation to the appellants. However, given the passage of time and the appellants' concession that the goods had become junk, the Tribunal focused on the misdeclaration of goods rather than the valuation dispute. 5. Proceedings Against Deceased Individuals: The proceedings against the deceased individual, Nilesh Ramesh Jadhav, were discussed in light of the Supreme Court's decision in Shabina Abraham. The Tribunal held that proceedings in personam against the deceased should abate, but proceedings concerning the clearance of imported goods could not abate, as ownership of the goods would be lost. The Tribunal modified the order to permit the redemption of goods to the legal heirs of the deceased importer. Conclusion: The Tribunal upheld the confiscation of goods, reduced the redemption fines, set aside the demand of duty under Section 28(4), and reduced the penalties under Section 112. Penalties under Sections 114A, 114AA, and 117 were set aside. The proceedings against the deceased individual abated, but the legal heirs were allowed to redeem the goods. The appeals were disposed of with these modifications.
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