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TMI Blog2001 (10) TMI 1084X X X X Extracts X X X X X X X X Extracts X X X X ..... ppropriate duty thereon, deducting the duty already paid. 2. I impose a penalty of Rs. 15,00,000/- (Rupees Fifteen lakhs only) on Shri A.B. Mehta u/s 112(a) of the Customs Act, 1962. 3. I impose a penalty of Rs. 5,00,000/- (Rupees Five lakhs only) on Shri Pravesh Chabra under Section 112(a) of the Customs Act, 1962. 4. I impose a penalty of Rs. 5,00,000/- (Rupees Five lakhs only) on M/s. Atixt Computers India (Pvt.) Ltd., Bombay under Section 112(a) of the Customs Act, 1962. 5. No separate penalty is imposed on M/s. G.S. Trading Company, Bombay, as penalty has been imposed on the proprietor viz., Shri A.B. Mehta. 2. The findings recorded by the Commissioner in para 5 of his order is extracted below :- 5. I have considered the above submissions. In so far as the mens rea is concerned, it is a fact on record that B/E No. 33586, dated 10-8-1993 has been filed by M/s. G.S. Trading Co., through their Clearing Agents M/s. Skylift Cargo (P) Ltd., declaring 260 pcs. PCBs 300 boxes Floppy diskettes, 40 pcs. Floppy Drives, all declared to contain in 40 cartons. They have also filed declaration as to the truthfulness of the contents in the B/E duly sign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the goods are liable for confiscation under Section 111(d) (m) of the Customs Act, 1962. In as much as the goods are found to be more in quantity than what is declared in the B/E and some of the goods are not even covered with the declaration in the B/E and taking into account the value of all the goods in the consignment, mis-declaration with reference to the description of the goods, quantity and the value, stands established and therefore these goods are liable for confiscation under Section 111 (m) of the Customs Act, 1962. Even though an attempt has been made to explain the discrepancy stating that the supplier had wrongly sent the goods by relying on a fax-cum-letter dated 12-8-93. I am unable to accept this for the following reasons. Both the consignments have been shipped by air on 2-8-93 as is found from the airway bills in question, whereas the supplier s fax is dated 12-8-93. This is from M/s. Vastraco Pvt. Ltd., Singapore. Even assuming that this fax dated 12-8-93 of M/s. Vastraco Pvt. Ltd., is genuine, there is no similar confirmation from M/s. Mirma Pvt. Ltd., Singapore, who have supplied 40 packages imported by M/s. G.S. Trading Co. Even the fax dated 12-8-93 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resorting to mis-declaration of the quantity and description of the goods and therefore the mens rea is fully established. For the reasons given above I do not accept the explanation that the goods were sent due to mix-up. I have also given the relevancy of the mutuality of business interest between the supplier and the importers in my findings above. With regard to the next contention that the goods having been allowed clearance under Section 47 of the Customs Act, 1962 no preceeding can be initiated without setting aside the above order of clearance; the learned Advocate relied upon a judgment of the South Regional Bench, CEGAT, referred to above. However, I do not agree with this contention because the clearance is allowed based on faith that the importer s declaration is correct. I have already held in my earlier findings that the declaration filed in the B/E are totally false. Therefore, the subject clearance allowed by the proper officer believing the declaration made in the Bs/E cannot stand in the way of taking action as per the law once it came to light that the declarations are false. But even otherwise as has been held by the Madras High Court in 1991 (56) E.L.T. 705 (M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments, but yet that statement itself cannot be a ground to reject their defence taken up pertaining to mixing up of the goods. He relies on the letter dated 12-8-93 and 19-8-93 sent by the supplier informing them about the mix-up in the goods. The letter dated 12-8-93 is at page 16 of the paperbook which is a reply sent to A.B. Mehta on the queries raised by A.B. Mehta. The letter clearly seeks excuse for gross mix up in the materials. ld. Counsel on a query from the bench admitted that these letters were received by them on A.B. Mehta s seeking clarification from the supplier only after the case was detected and after the statements were recorded. 4. Ld. Counsel on a specific query from the bench clearly submits that the appellants had not raised the question of valuation of the goods under seizure. But his plea is that the penalty cannot be imposed in this case and it is too excessive. He submits that even otherwise, as the appellants have not indulged in the act of mis-declaration, the penalty is required to be tuned down considerably, as the appellants are not regular smugglers and not indulging in such activity. This is a genuine case of mix-up and as such, for apparent mis- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner through their counsel and the same has not been established by any clinching evidence. He submits that penalty imposed is on the basis of the proved contravention. The Commissioner, in terms of Rule 112(a) could have imposed penalty 5 times value of the goods. The goods have been valued at Rs. 35,36,150/- as against the declared value of Rs. 1,89,989/-. Had the goods not been intercepted then, the Revenue would have lost more than 40 lakhs in the matter. Therefore, the penalty imposed in the present case is very nominal and it does not call for any reduction or interference in the impugned order. 6. On a careful consideration of the submissions made by both the sides and on perusal of the entire evidence on record, we are satisfied that the order passed by the Commissioner is legal, valid and sustainable for the following reasons :- At the outset, appellants have not resiled from the statements recorded by the investigating authorities. The appellants also have not filed replies to the show cause notice contesting the contents of the containers which have been meticulously drawn up in the Mahazar. The value of the goods drawn in the mahazar has also not been contested. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the other circumstantial evidence and documentary evidence and admissions by which the appellants have clearly admitted their connivance in the matter in getting the goods other than what had been declared. The appellants have not challenged the valuation which has been adopted in the matter and the duty which is required to have been paid. Mere fact that appellants have not redeemed the goods will not call for a finding to the effect that appellants had not booked the goods which are introduced in the bill of entries. Further, the argument raised by ld. Counsel that the ld. Magistrate had granted him bail will have no bearing on the findings arrived at by the Commissioner with regard to the mis-declaration and under-valuation of the goods. In view of a very weak defence raised and that too in orally before the Commissioner, we do not find any infirmity in the order. Ld. Commissioner has given detailed finding on each of the points and we have extracted the same and we find that the order is legal, sustainable and correct. 7. With regard to the counsel s plea for reduction of penalty on the ground that it is excessive, we notice that in this matter, appellants have declared th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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