2005 (12) TMI 160 - AT - Customs

Anti-dumping duty - mis-declaration of quantity and value of the imported ceramic vitreous tiles - Redemption fine and penalty - Customs House Agents - tampering of documents - confiscation - redemption fine - penalty - HELD THAT - The declared quantity is 4280.32 Sq. metres whereas the quantity actually imported is 8834.32 Sq metres. In respect of the last consignment imported vide Bill of Entry dated 5-4-03 the declared quantity is 5662 80 Sq metres, whereas the actual quantity is 11094.60 Sq. metres. In the last consignment, it was revealed that the tiles actually imported were not of the same dimensions as per the declaration. Shri Anil Kothari also has categorically accepted this position in his statements. Hence, we are of the view that the mis-declaration in respect of quantity as established by the Commissioner in his findings is correct. The adjudicating authority has not given any finding on that invoice. It has not been proved by the Revenue that the bank attested invoice is a fake. Therefore, we are of the view that in respect of the last consignment, a value of 6.5 US per Sq metre can be adopted. Anti-dumping duty in terms of Notification No. 73/2003-Cus., has been demanded. It is seen that when these consignments were imported, the provisional Anti-dumping duty imposed on the goods had already lapsed. This Tribunal in the case of Commissioner of Customs Cochin v. Raghav Enterprises in the Final Order 1290-1291/2005, dated 28-7-2005 has held that when the goods are imported after the provisional Anti-dumping duty notification lapses, no Anti-dumping duty can be levied retrospectively in respect of the goods on the basis of the notification levying Anti-dumping duty. The Anti-dumping duty provisionally imposed under Notification No. 50/2002, was effective till 1-11-2003. The consignments were imported during December, 2002 and January-April 2003. During the above period no provisional Anti-dumping duty was leviable. Hence, during this period, Notification No 73/2003 Cus., cannot be applied retrospectively. Hence, the order concerning Anti-dumping duty in Para g of the Order portion in the impugned order is set aside. Since, we have ordered that the value of the imported goods in the last consignment should be taken at 6.5 US on the basis of the Bank attested invoice, the assessable value and consequently the duty liability in respect of the goods imported under Bill of Entry dated 5th April 2003 is to be recomputed. Similarly, the MRP of the tiles imported should be recomputed for purposes of calculation of countervailing duty. The finding that the goods imported under the above-mentioned bill of entry are liable for confiscation is upheld. The confiscation in respect of the goods imported under the first two bills of entry is also upheld. The demand of differential duty of Rs. 9,04,162/- and Rs. 10,64,383/- in respect of the first two bills of entry are upheld. The confiscation of 8119.84 Sq metres of vitrified tiles seized from various godowns of M/s. G.M. Exports u/s 111 (l) and 111 (m) of the Customs Act is upheld. The imposition of redemption fine of Rs. 10 lakhs on the above goods is upheld. The penalty imposed u/s 114 (a) of the Customs Act is reduced to Rs. 7 lakhs only taking into account the fact that the appellants paid an amount of Rs. 20 lakhs and executed a Bank Guarantee of Rs. 18 lakhs during the course of investigation of the case. The OIO is modified as indicated above as far as the appellant M/s. G.M. Exports are concerned. We are of the opinion that the Commissioner should have taken into consideration even the goods, which are not available for imposition of redemption fine. Hence we remand the issue to the Commissioner to impose a suitable fine in respect of the goods held liable for confiscation and not available with the department. As regards the non-imposition of penalty on the officers we find that the Order in review has not been served on the three officers. Therefore, deciding the issue without giving notice to them would be violation of principles of natural justice. Hence, Revenue's appeal on the second ground is rejected. Revenue's appeal is disposed of in the above manner.

Issues Involved:
1. Mis-declaration of quantity and value of imported goods.
2. Validity of Anti-dumping duty.
3. Penalty on Customs House Agent (CHA) and its employees.
4. Penalty on individual importer.
5. Revenue's appeal for non-imposition of redemption fine on unavailable goods and non-imposition of penalties on Customs officers.

Detailed Analysis:

1. Mis-declaration of Quantity and Value of Imported Goods:
The main allegations against the appellant involved mis-declaration of quantity and value of ceramic vitreous tiles imported via three Bills of Entry. The Commissioner established that the declared quantities were significantly lower than the actual quantities imported. For instance, the declared quantity for the Bill of Entry dated 28-12-2002 was 3745.28 Sq Metres, while the investigation revealed 7721.28 Sq Metres. Similarly, mis-declaration of value was established, where the declared value was US $5.5 per Sq Metre, but the Commissioner determined it should be US $8.5 per Sq Metre based on contemporaneous imports. However, the tribunal accepted a bank-attested invoice showing a value of US $6.5 per Sq Metre for the last consignment and ordered a re-computation of the assessable value and duty liability.

2. Validity of Anti-dumping Duty:
The Anti-dumping duty was contested on the grounds that the provisional Anti-dumping duty had lapsed before the importation of the consignments. The tribunal referred to the case of Commissioner of Customs Cochin v. Raghav Enterprises, which held that Anti-dumping duty could not be levied retrospectively if the provisional duty had lapsed. Consequently, the tribunal set aside the demand for Anti-dumping duty as per Notification No. 73/2003-Cus., dated 1-5-2003, since the imports occurred when no provisional duty was in effect.

3. Penalty on Customs House Agent (CHA) and its Employees:
The CHA, M/s. Ganesh Shipping Agencies, was implicated for the involvement of its employees in generating false invoices. However, the tribunal found no evidence that the CHA itself was involved or had prior knowledge of the mis-declaration. The tribunal cited several case laws emphasizing the necessity of proving prior knowledge for imposing penalties on CHAs. Consequently, the penalty imposed on the CHA was set aside, considering their long-standing good track record.

4. Penalty on Individual Importer:
Shri Anil Kothari was held liable for mis-declaration and was penalized under Section 112(a) of the Customs Act. The tribunal upheld the penalty but reduced it from Rs. 10 lakhs to Rs. 5 lakhs, acknowledging the circumstances and the appellant's cooperation during the investigation.

5. Revenue's Appeal for Non-imposition of Redemption Fine on Unavailable Goods and Non-imposition of Penalties on Customs Officers:
The Revenue appealed against the non-imposition of redemption fine on goods not available for confiscation and the non-imposition of penalties on Customs officers. The tribunal agreed that the Commissioner should have considered imposing a redemption fine on the unavailable goods and remanded this issue for reconsideration. However, the tribunal rejected the appeal regarding the Customs officers, noting that deciding the issue without serving notice to the officers would violate principles of natural justice.

Conclusion:
The tribunal upheld the findings of mis-declaration of quantity and value but adjusted the assessable value for the last consignment. The Anti-dumping duty was set aside due to the lapse of the provisional duty. Penalties on the CHA were removed, while the penalty on the individual importer was reduced. The tribunal remanded the issue of redemption fine on unavailable goods for reconsideration and rejected the appeal concerning penalties on Customs officers.

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