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TMI Blog2011 (4) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... ect to their mala fide intent to evade duty. It is evident from the facts and circumstances of the case that the two applicants made an attempt to evade Customs duty by so organizing the imports as to avert direct responsibility for defrauding the Revenue. The Bench therefore holds that in view of gross misdeclaration of the contents and the value of goods in BDFs, the imported goods have been rendered liable for confiscation and the two applicants have also rendered themselves liable to penalty for their act of omission and commission committed in relation to the imported goods. Redemption fine and penalty reduced and immunity granted from in excess amount fixed for this purpose. Full immunity granted from prosecution. X X X X Extracts X X X X X X X X Extracts X X X X ..... s Rs. 38,500/- which was enhanced to Rs. 70,000/- by the Customs Authorities. A Customs duty of Rs. 18,386/- paid vide DR No. 977091 dated 23-11-2009. Out-of-Charge of the said consignment was also obtained on 23-11-2009. The said consignment was examined by the Revenue on 1-12-2009 and 2-12-2009. The examination revealed that the said consignment of 129 packages consisted of 108 HDPE bags/Potlas and 21 packages of wooden crates. The said 108 bags had names and addresses of different consignors of UK and different consignees in India. Examination of 21 wooden crates revealed that the same contained brand new high value furniture, glassware, chandeliers parts and other household goods imported from UK. The total value of the goods contained in the Potlas was ascertained to be Rs. 3,15,975/- CIF. The value of the goods contained in the 21 wooden crates was estimated at Rs. 68,33,000/- CIF. Total value of the two types of goods came to be Rs. 71,48,975/- as against a declared value of Rs. 38,500/- and re-assessed value of Rs. 70,000/-. Scrutiny of the BDF showed that the goods contained in the said 21 crates were not declared by the passenger. The goods contained in the said Potlas we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same were divided into two lots and were kept apart from each other to show as if the two lots belonged to different importers. The goods as declared in the BDF were shown to the Customs authorities whereas the goods not declared were not shown to the Customs authorities to evade examination. In the present matter also the wooden crates in case of both the BDFs were not examined. Sh. Salman admitted that out of the said 256 packages in the consignment covered by BDF No. 1032 dated 18-11-2009, 14 packages were other than Potlas. Out of the said 14 packages, two (02) packages contained old and used cupboard and table and the same were lying in the godown of a transporter at Mazgoan. The other two (02) packages were sent to Gujarat as per the addresses mentioned on the packages along with Potlas. Balance ten (10) packages/wooden crates were delivered at the given addresses and the same were received by the consignees in perfect condition. He submitted that he did not have the idea as to what goods were contained in the said ten (10) wooden crates. 2.7 In respect of the goods covered by the BDF No. 1048 dated 23-11- 2009 i.e., 21 wooden crates, Sh. Salman submitted that after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of BDF No. 1032, dated 18-11-2009 and Sh. Shahul Hameed Shabu in respect of BDF No. 1048, dated 23-11-2009 disowned the said goods and admitted that they lent their passports to the said Sh. Salman for monetary considerations. 2.11 In his statements, the first applicant submitted that he hired services of the second applicant for doing interiors for his house in Delhi. For the purpose of selection of items of interior decoration, he took the second applicant with him to UK on his own expenses. The first applicant further submitted that they made purchases worth GBP 1,91,475 in UK. Before his return to India, the first applicant entrusted shipment of the said goods to India to one Sh. Bhupendra Madlani of M/s. Maina Freight Forwards in UK and agreed to pay GBP 30,000 for the same. After these arrangements, the first applicant returned to India whereas the partners of the second applicant stayed back. In their statements, the partners of the second applicant submitted that they made some purchases for themselves which included a General's Bust (made of bronze) with pedestal, a pair of table lamps, two brass tables and some glassware. They spent GBP 31,950 in purchasi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decoration of the first applicant's house in Delhi. The first applicant bought goods worth GBP 1,91,475 whereas the second applicant bought goods worth GBP 31,950. For shipment of the said goods to India they contacted Sh. Bhupendra Madlani of M/s. Maina Freight Forwarders in UK who agreed to ship the said goods to the applicant's door-steps charging GBP 30,000 for the same inclusive of Customs duty and other handling charges. 3.2 Instead of shipping the said goods in the names of the said applicants, the said goods were shipped in the names of unrelated persons namely S/Sh. Riyaz Ahmed Niyaz Ahmed and Shahul Hameed Shabu by mis-using their passports details. Sh. Bhupendra Madlani of M/s. Maina Freight Forwarders of UK in connivance with Sh. Khan Abdul Aziz @ Salman attempted to smuggle the said goods into India in the guise of unaccompanied baggage. One of the containers (Container No. IKMU 5000190) containing part of the said goods was cleared on 18-11-2009 from the Customs vide BDF No. 1032 dated 18-11-2009. However, based on intelligence, part of the said goods which arrived in another container (No. BAXU 9766411) were detained by the Revenue on 23-11-2009. The goods in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in the matters of Manish Kalvadia [2008 (228) E.L.T. 342 (Bom.)] and M/s. Hoganas India Ltd. under Special Leave Petition in the Hon'ble Supreme Court. 4.1 Hearing in the matter was held on 31-3-2011. The applicants were represented by Sh. Sujay N. Kantawala, Advocate assisted by his Legal Assistant Sh. Mahadeo Londhe. Revenue was represented by S/Sh. D.M. Advani and S.H. Hatangadi, both S.I.O.s, and Sh. G. Shiva Shanker, I.O. from DRI, Mumbai Zonal Unit, Mumbai. 4.2 At the outset, the ld. Advocate submitted that the facts of both the cases were identical and a common Show Cause Notice dated 9-11-2010 was issued to the applicants. Both the applicants were together while buying the said goods in U.K. for the common purpose of interior decoration of the house of the first applicant. Re-iterating facts of the cases, the ld. Advocate submitted that the goods imported by the applicants were for the personal use of the first applicant and not for trade or commerce. For transporting the said goods from UK the applicants hired services of M/s. Maina Freight Forwarders for home delivery of the goods. The applicants were to pay the final bill on receipt of the said goods at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BDF did not fall under the definition of a Bill of Entry as specified in Section 2(4) of the Act, which meant a Bill of Entry as referred to in Section 46 of the Act. Moreover, the goods imported by the applicant never came to be declared even in the BDF. The ld. Representative pointed out that the passengers under whose names the said goods were booked were not the real owners but were mere carriers who lent their Passport details for monetary considerations. He submitted that the said passengers did not even know the contents of the packages. The ld. Representative further stated that the goods were purchased from U.K. but had not come from UK. He submitted that the goods were first sent to Dubai from where the same exported to India in the names of unrelated persons. 4.5 Contesting the reliance of the applicants on Final Order No. 105/Final Order/CUS/KNA/2009 of the Settlement Commission, Additional Bench, Mumbai the ld. Representative submitted that in the cited case the applicant booked the goods in his own name. However in the present case the actual owners could have booked the goods in their own name but they thought it convenient to hand over the said goods worth cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in their own names, the ld. Representative replied that in order to claim to be importer of the said goods, the Bill of Lading covering the said goods must be in the names of the applicants. Upon such action, the IGM would have included the details of the applicants such as their names, passport numbers, number of packages, description of the goods etc. The applicants not having taken due care to do so, the said goods arrived in the names of unrelated persons through Dubai. The Bench, however, observed that the said technicalities could not hinder settlement of the cases since not only the Revenue had identified the applicants as the owners of the said goods, even the Customs duty was demanded and recovered from them. Provisional release of the said goods was also made to the very same applicants. The Bench further observed that on the issue of requirement of Bill of Entry under Section 127B(1) of the Act, it was a consistent view of the Bench that a BDF was as good as a Bill of Entry and the two stood pari passu with each other in the matters of settlement of cases. The Bench enquired as to whether interest was payable by the applicants in the present cases, to which the ld. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e made to the order passed by the Principal Bench of the Settlement Commission in the case of Ashok Kumar Jain reported in 2009 (247) E.L.T. 893 (Sett Comm.). The aforesaid order draws support from the decision of the Hon'ble Madras High Court in the case of V.C. Mohan v. Commissioner of Customs (Air), Chennai-I reported in 2008 (222) E.L.T. 344 (Mad.) and of the Hon'ble Bombay High Court in the case of Commissioner of Customs, Mumbai v. Manish Kalvadia reported in 2008 (228) E.L.T. 342 (Bom). The ld. Advocate for the applicant has also additionally placed reliance upon order of the Hon'ble Bombay High Court in the case of Union of India v. Hoganas India Ltd. [2006 (199) E.L.T. 8] and of the Apex Court [(sic) Settlement Commission] in the case of A. Mahesh Raj reported in 2001 (131) E.L.T. 707 (Sett. Comm.) wherein it has been held that non-filing of Bill of Entry for imported goods cannot be a factor affecting the admission of the applications when filing of Bills of Entry is not contemplated in law for clearance of Baggage goods. It has, however, been contended by the Revenue that the decision of the Hon'ble Bombay High Court in the case of Manish Kalvadia - 2008 (228) E.L.T. 342 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods as their own personal Baggage but entrusted the responsibility to a Freight Forwarder who transshipped the goods from another port in the name of persons clearly unrelated to the two applicants. The covert methods used for transshipping the goods clearly expose the collusion of the applicants in giving effect to their mala fide intent to evade duty. It is evident from the facts and circumstances of the case that the two applicants made an attempt to evade Customs duty by so organizing the imports as to avert direct responsibility for defrauding the Revenue. The Bench therefore holds that in view of gross misdeclaration of the contents and the value of goods in BDFs, the imported goods have been rendered liable for confiscation and the two applicants have also rendered themselves liable to penalty for their act of omission and commission committed in relation to the imported goods. The Bench has however, kept in view the disclosures made by the applicants, co-operation extended during investigation and settlement proceedings and prompt payments of admitted duty liability while considering the extent of immunities to be allowed to them and laying down below the terms of sett ..... X X X X Extracts X X X X X X X X Extracts X X X X
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