9911796707
TMI Blog2010 (3) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... : Rakesh Kumar, Member (T) (Oral)]. - The facts leading to these appeals are, in brief, as under : - 1.1 Shri J.D. Marwah is the proprietor of a CHA firm M/s. J.D. Enterprises, Rajdoot Marg, Chanakyapuri, New Delhi. On 15-9-2003 on receipt of an information that Shri Marwah has cleared various consignments by under declaring the value and mis-declaring the description or without payment of duty by production of false documents, in connivance with the importers, office premises of the CHA were searched by D.R.I, officers. In the course of search, among the documents seized were the files pertaining to imports made by M/s. Gurunanak Home Tech Exporter, M/s. E.I. Dupont India Ltd. (hereinafter referred to as EIDIL), M/s. Sight & Sounds India, M/s. Sounds Terrific and M/s. Universal Electronics. Statement of Shri Marwah was recorded by the investigating officers on 15-9-2003 under Section 108 of Customs Act, 1962, wherein he admitted that there is under valuation and mis-declaration of description in the imports made by the above mentioned importers and in particular he admitted that - (a) A consignment of tags imported by EIDIL free of duty under exemption Notification No. 21/2002-C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed classification of the goods. 1.3 On completion of the investigation, a show cause notice dated 17-8-2004 was issued to EIDIL, Sounds Terrific, Sight & Sound India, Shashi Kumar of EIDIL and Sunil Khera, proprietor of Sight & Sound India and Shri Pradeep Khanna, proprietor of Sound Terrific and Jagjeet Singh Marwah, proprietor of M/s. J.D. Enterprises, CHA for- (a) Recovery of differential duty amounting to Rs. 5,74,795/- along with interest on it from EIDIL and appropriation of an amount of Rs. 3,03,416/- already deposited by EIDIL towards this demand; (b) Recovery of differential duty of Rs. 3,18,286/- along with interest on it at applicable rate from M/s. Sight & Sound India and appropriation of Rs. 3,18,181/- already deposited by them towards this demand; (c) Recovery of differential duty amounting to Rs. 2,38,127/- along with interest from M/s. Sounds Terrific and appropriation of Rs. 2,37,985/- already deposited towards this demand; (d) Imposition of penalty on EIDIL, M/s. Sight & Sound India, and M/s. Sounds Terrific under Section 112(a) and 114A of the Customs Act, 1962, and (e) Imposition of penalty under Section 112(a) on Shri Sasi Kumar of EIDIL, Shri Sunil Khera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the order of the Commissioner (Appeals) which are registered as C/79 & 80/2008, respectively. 1.6 After issue of Order-in-Original dated 20-10-2006 passed by the Additional Commissioner, imposing penalty of Rs. 5 lakhs on Shri Marwah for his alleged mis-conduct, the Commissioner of Customs initiated proceedings for revocation of his CHA licence and as a first step in this direction, vide order dated 29-1-2007 issued under Rule 20 of Customs House Agent Licensing Regulation, 2004 (hereinafter referred to as CHALR) suspended the CHA license. Shri Marwah filed appeal No. 484/07 before the Tribunal against the order dated 29-1-07 of the Commissioner suspending the CHA license. The Tribunal vide order dated 4-6-2008 disposed of the appeal observing that since the appeal against the order dated 31-12-07 of the Commissioner (Appeals) is pending before the Tribunal, no intervention is required at this stage. Shri Marwah filed appeal before the Hon'ble Delhi High Court against the Tribunal's order dated 4-6-2008 and the Hon'ble Delhi High Court vide order dated 13-2-2009 while observing that no intervention is required at this stage, directed the Tribunal to expedite the appeals of Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds had been declared after examination by the Customs and in some cases the assessment itself was on first check basis i.e. first examination of the goods and then assessment of duty based on the examination report. From the perusal of the examination report on Bills of Entry, it will be seen that the customs officers on examination found the goods to be as per the declaration. In view of this, there is no basis for allegation of abetment of duty evasion by mis-declaration against Shri J.S. Marwaha. Since the goods were Flat Panel Display for Automatic Data Processing Machine, the concessional rate of duty under Notification No. 21/02-Cus. (Srl. No. 325 of table annexed to the notification) has been correctly availed. (3) There is no admission by the importers that the goods imported were Reception apparatus for television. The examination reports by the customs, as recorded on the Bills of Entry, also confirm that the goods on being examined were found to be as per the declared description i.e. Flat Panel Display for Automatic Data Processing Machine/Plasma Monitors for computers. The Commissioner (Appeals) in the impugned order-in-appeal has also given finding that there is no d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification No. 21/02-Cus. (Srl. No. 325), that false description of goods had been knowingly given in the Bills of Entry so as to claim the benefit of exemption notification; that the Hon'ble Supreme Court in the case of Surjit Singh Chabra v. UOI, reported in 1997 (89) E.L.T. 646 (S.C.) has held that confessional statement made before the Customs officers, even if retracted within 6 days, is an admission and binding since the Customs officers are not police officers; that the same view has been taken by the Supreme Court in the case of Bhana Khalpa Bhai Patel v. Asst. Collector of Cus., Bulsar, reported in 1997 (96) E.L.T. 211 (S.C.) and that since Shri Marwaha had abeted the duty evasion by mis-declaration, penalty under Section 112(a) has rightly upheld by the Commissioner (Appeals). 3. We have carefully considered the submissions from both sides and perused the records. There are three main issues to be decided in this case - (a) Were the goods imported eligible for concessional rate of duty under Notification No. 21/02-Cus. (Srl. No. 325)? (b) If answer to question (a) above is in the negative, whether Shri Pradeep Khanna, proprietor of M/s. Sounds Terrific, is liable for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether or not incorporating radio-broadcast receivers or sound or video recording or reproducing apparatus; video-monitors and video projectors - Reception apparatus for television, whether or not incorporating radio-broadcast receivers or sound or video recording or reproducing apparatus : 8528.12 - Colour 30% 8528.18 - Black and white or other monochrome Video monitors : 30% 8528.21 - Colour 30% 8528.22 - Black and white or other monochrome 30% 8528.30 - Video projectors 30% 85.31 Electric sound or visual signaling apparatus (for example, bells, sirens, indicator panels, burglar or fire alarms), other than those of heading 85.12 or 85.30 8531.10 - Burglar or fire alarms and similar apparatus 30% 8531.20 - Indicator panels incorporating liquid crystal devices (LCD) or light emitting diodes (LED) 15% 8531.80 - Other apparatus 30% 8531.90 - Parts 30% 4.2.1 As per HSN Explanatory Notes to heading 85.28, "this heading covers video monitors which are receivers connected directly to the video camera or recorder by means of co-axial cables, so that all the radio-frequency circuits are eliminated. They are used by television companies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use in Automatic Data Processing machines/Plasma Monitors for computers" under heading 85.31 is totally ruled out. Since the monitors are meant for use with computers and since the imports are of pre - 1-1-07 period, the goods would be correctly classifiable under 84.71. The question now arises as to whether the same would be eligible for concessional rate of duty under Notification No. 21/02-Cus. (Srl. No. 325). 4.4 Notification No. 21/02-Cus., dated 1-3-2002 prescribes concessional rate of duty for the goods of description and falling under Chapter Heading as mentioned in column (3) and column (2) respectively of table annexed to this notification. Srl. No. 325 of the table annexed to this notification mentions concessional rate of duty of 15% for "Flat Panel Display of a kind used in Automatic Data Processing Machine and Telecommunication operators and falling under Sub-heading 8531.80." 4.4.1 From the description of the goods as given on the Bills of Entry -"Flat Panel for Automatic Data Processing Machine/Plasma Monitors for computers", which has been confirmed by the Customs authorities on examination, it is clear that the goods are monitors meant for use with Automatic Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Marwah of M/s. J.D. Enterprises liable for penalty under Section 112(a)? 6.1 Initially there were two allegations against him. First allegation was that he produced forged AEPC certificate for duty free clearance of consignments of tags imported by EIDIL and the second allegation against him is that in respect of import of Plasma Monitor by M/s. Sounds Terrific and M/s. Sight & Sound India, the description was deliberately misdeclared in order to avail concessional rate of duty. 6.2 As regards the first allegation of producing forged AEPC certificate, the Commissioner (Appeals) in his Order-in-Appeal has dropped this charge holding that the allegation of forgery cannot be accepted particularly when the production of AEPC certificate was not required under the said notification for claiming exemption and it is beyond comprehension as to why somebody would take a risk to forge something, forging of which is not going to give him any benefit. He also observed that AEPC certificate alleged to have been forged by Shri Marwah was not made part of the relied upon documents of the show cause notice. The department has not filed any appeal against this part of the order of the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that 'in respect of imports by M/s. Sounds Terrific and M/s. Sight & Sound, while clearing the goods, the description of goods had been changed as "Flat Panel Display for Automatic Data Processing Machine" which attracts lesser rate of duty whereas the actual goods imported vide invoices attached to bills of entry should have been cleared at higher rate of duty and thus the goods have been mis-declared', and thus the statement would imply that fabricated invoices showing false description of the goods had been produced so as to claim assessment of duty at lower rate, there is no evidence that the invoices submitted by the importers to the Customs were fabricated invoices, not the actual invoices issued by the suppliers. Therefore, the statements of Shri Sunil Khera, Shri Pradeep Khanna and Shri J.S. Marwah cannot be treated as evidence against themselves on the basis of which the examination reports of the Customs confirming the goods to be as per declared description can be discarded. Therefore, there is no mis-declaration of description and just because the benefit of exemption under Notification No. 21/02-Cus. (Srl. No. 325) had been claimed, it cannot be alleged that the fals ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
