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TMI Blog1995 (12) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. M/s. Poonam Leather Industries were liable to pay customs duty of Rs. 14,18,012 attempted to be evaded by them, and all the three noticees were liable to penalty. The matter was adjudicated by the Collector of Customs, Cochin, who under his Order-in-Original dated 22-4-1993 read with addendum imposed a redemption fine of Rs. 10 lakhs and a penalty of Rs. 2 lakh each on Poonam Leather Industries, Shri Dada Saheb Shinde and Shri Lalit Ajmera. Against the order confiscating the goods, the appellant had filed a writ petition in the Kerala High Court. Under their order dated 14-12-1993 the Hon ble Kerala High Court disposed of the writ petition with the observations that an appeal may be considered by the Tribunal in accordance with law and disposed of within a reasonable time. 3. The matter was posted for hearing on 9-8-1995 when Shri G.L. Rawat, ld. Advocate appeared for the appellants. Shri A.K. Singhal, ld. JDR represented the respondent. 4. Shri G.L. Rawat, ld. Advocate stated that the stamping foils imported were used in leather industry. The order had been placed on 15-11-1991 with M/s. Top-Op (Foods) Ltd., U.K. The goods were originally sent to some other customer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable and the goods sought to be cleared on the strength of such incorrect documents. The original invoice was recovered as a result of search of the premises of the Clearing Customs House Agent. The goods and their quantity tallied with the recovered documents. These original documents showed about double the value. The circumstances of the case clearly establish that the appellants wanted to cheat the Revenue and the case could be made out as a result of painstaking investigations. The letter of credit has been opened for the actual value. The ld. JDR submitted that the case was based on the documents of the appellants and the statements only corraborated the contents of the documents. The various statements only refer to factual averments. The goods have been misdeclared and they were not covered by the exemption notification. The ld. JDR referred to the Tribunal s decision in the appellant s own case, in the case of Poonam Plastic Industry v. Collector of Customs - 1989 (39) E.L.T. 634 (Tribunal) wherein the Tribunal had held that the Deptt. was not to prove actual value with mathematical precision and the reliance on documents was proper when the transactions were veiled in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf sometimes as a partner of PLI and at other times as representative of PLI. The original documents, which were recovered as a result of search and seizure showed considerably higher price than the price declared to the customs. In the show cause notice dated l2-8-1992, it was alleged that the quantity and the value of the goods under import - stamping foils - was mis-declared. On 17-3-1992, the office premises of M/s. D.B. Khona Customs House Agent (CHA) situated at Cochin were searched. Among the various documents recovered and seized was the Invoice No. 15622, dated 6-12-1991 in two sheets issued by the original suppliers, M/s. Leon Hard Curz GMBH and Co., West Germany in the name of M/s. Top-Op (Foods) Ltd., U.K. for stamping foils total weight 4122 Kgs. net of a total value of DM 54112.35 FOB. In Indian rupee it was equivalent to Rs. 9,48,922.15. In his statement dated l7-3-1992, recorded under Section 108 of the Customs Act, 1962 (hereinafter referred to as the Act ), Shri M.K. Kuttappan Menon General Manager of M/s. D.B. Khona (CHA) stated that the said invoice was given to them by M/s. Lee Muir, Cochin. This invoice was not filed with the bill of entry. With the bill of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was got prepared on 3-1-1992 and a much lower value was shown in this invoice. They reached Cochin from Trivandrum by surface transport in Feb./March, 1992. It is also relevant to note that the Certificate of origin is dated 11-12-1991. The most important aspect of the case is that the clearance was organised by the same Mr. Lalit Ajmera, who was said to be the original buyer. From the statement of Shri Lalit Ajmera, it is seen that PLI was actually requiring the goods, that the goods imported were not meant for his firm and that the second invoice was got issued from the UK firm for a lesser value to evade payment of customs duty. He had admitted that he (Mr. Ajmera) had merely acted on behalf of PLI who were the actual importer. In the impugned order, the Collector of Customs, Cochin had observed as under : I find that M/s. Poonam Leather Industries presented a copy of their order for the consignment of the clearance of goods while filing the bills of entries. The said order is dated 15-11-1991. The shipment took place only on 6-12-1991 and the invoice was received by the German supplier only on that date. If an actual distress sale took place, it would have been before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rer/suppliers in Germany has not certified about its use in Leather Industry. At the same time, similar supplies of stamping foils covered by the invoice, copies of which are produced by the importer now indicated that when stamping foils for use in leather industry are supplied a specific certification is made regarding its use by the supplier. A separate certificate for this purpose now produced on 6-12-1991 taken only as an after thought and that to at the instructions of the importers who are facing the charges. Based on the above, I hold that the imported stamping foils are not used in leather industry and therefore, the wrongful claim for concessional duty and importation without valid import licence are also proved. We do not find any infirmity in the reasoning of the adjudicating authority. 11. The ld. JDR had referred to the Tribunal s decision in the case of Poonam Plastics Industries v. Collector of Customs - 1989 (39) E.L.T. 634 (Tbl.) wherein the Tribunal had come to a finding that the appellant had grossly under-declared the value and had attempted to pass the goods without a licence and at a concessional rate of duty by mis-declaring them as cellulose nitrate sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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