2021 (11) TMI 847 - AT - Customs

Levy of penalty u/s 114AA of Customs Act, 1962 - reassessment of the goods by amending the documents under Section 149 of the Act - wrong invoice was sent by the foreign supplier - misuse of provisions of Section 149 to undervalue the goods and evade customs duty - HELD THAT - There is no previous incidence put forth by the department to prove that the appellant has been indulging in such practice of requesting for amendment of invoice to a lower value and thereafter remitting the balance amount to the foreign supplier, in fact, in the present case, appellant has remitted only US 7140 to the foreign supplier and no further amount has been paid. In later correspondence, the foreign supplier, the Company GY, China has requested the appellant to reexport goods so that they can send the goods actually ordered by the appellant. It was a genuine mistake of issuing wrong invoice which has been used by the CHA to file the Bill of Entry. The wrong invoice of USD 23750 was not given by the appellant, but the same was collected by CHA from the shipping liner. The appellant cannot be implicated for such mistake by imposing penalty. Moreover, the penalty imposed under Section 114AA is attracted only when there is deliberate falsification of documents in order to get undue benefit. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Legality and propriety of the penalty imposed under Section 114AA of the Customs Act, 1962.
2. Allegation of undervaluation of goods and evasion of customs duty.
3. Request for amendment of the invoice under Section 149 of the Customs Act, 1962.
4. Request for re-export of goods.

Detailed Analysis:

1. Legality and Propriety of the Penalty Imposed Under Section 114AA of the Customs Act, 1962:
The primary issue in this case is whether the penalty of ?1,71,000/- imposed under Section 114AA of the Customs Act, 1962, is legal and proper. The appellant contended that the penalty under Section 114AA is unwarranted as the mistake in the invoice was genuine and not an attempt to use false and incorrect documents. The Tribunal observed that Section 114AA provides for penalties in cases of deliberate falsification of documents to gain undue benefits. The Tribunal cited the case of Commissioner of Customs, Sea, Chennai-II Vs Sri Krishna Sounds and Lightings, where it was held that the penalty under Section 114AA is excessive if there is no deliberate falsification. Consequently, the Tribunal concluded that the penalty imposed on the appellant cannot be sustained.

2. Allegation of Undervaluation of Goods and Evasion of Customs Duty:
The department alleged that the appellant attempted to evade customs duty by requesting an amendment to the invoice to show a lower value. The original invoice showed a value of USD 23750, while the appellant claimed the correct value was USD 7140. The Tribunal noted that the appellant had requested amendments not just to the invoice amount but also to the name of the foreign supplier, indicating a genuine mistake rather than an intent to evade duty. The Tribunal found no evidence that the appellant had a history of such practices or had remitted any additional amount to the foreign supplier beyond the initial payment of USD 7140.

3. Request for Amendment of the Invoice Under Section 149 of the Customs Act, 1962:
The appellant requested an amendment to the invoice under Section 149, believing that a wrong invoice had been sent by the foreign supplier. The Tribunal noted that the appellant acted promptly upon realizing the mistake and requested the amendment immediately. The Tribunal found that the mistake was genuine and occurred at the foreign supplier's end. The Tribunal also observed that the CHA had filed the Bill of Entry based on documents collected from the shipping liner, not from the appellant, which further supported the appellant's claim of a genuine mistake.

4. Request for Re-export of Goods:
The appellant's request for re-export of the goods was denied by the lower authorities. The Tribunal observed that the appellant had suffered financial hardship and mental agony due to the denial of re-export. The foreign supplier had confirmed that the goods were wrongly shipped and requested their return. The Tribunal found that the appellant had not received the goods for which they had paid and that the denial of re-export was unjustified.

Conclusion:
The Tribunal set aside the penalty imposed under Section 114AA, finding it unsustainable due to the genuine mistake in the invoice and lack of deliberate falsification. The Tribunal allowed the appeal with consequential relief, acknowledging the appellant's financial and mental hardship due to the denial of re-export. The judgment emphasized the importance of distinguishing between genuine mistakes and deliberate attempts to evade customs duty.