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TMI Blog2014 (2) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... /s H.V. Ceramics, M/s PFZ Corporation were incorrect in as much as these three units were dummy. After causing various verifications and recording statements of various persons, show cause notice was issued to the appellant and others for demand of the antidumping duty, interest thereof and imposition penalties. The adjudicating authority, after considering the replies filed by the various persons and the appellant herein and after following the due process of law, confirmed the demands raised along with interest and imposed penalties on various persons. In the first round of litigation, the Bench set aside the impugned order and remanded the matter back to the lower authorities vide Final Order No.A/789-792/WZB/AHD/2009, by holding that the adjudicating authority cannot confirm the duty and impose penalties jointly and severely against the two persons. The adjudicating authority, in the impugned order, in de-novo proceedings, after considering the submissions made by the appellant holding that the appellant is importer, confirmed the demands raised in the 3 show cause notices, ordered for recovery of interest and also imposed equal amount of penalties on the appellant and imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson who holds out to be an imported or owner. He would submit that on this point itself, the impugned order needs to be struck down, hence we are not making any further observations on various other issues. 4. Ld. Departmental Representative, on the other hand, would take us through the brief facts of the case. He would submit that the appellant herein had colluded with one Shri Danny of Singapore for evasion of antidumping duty levied on vitrified tiles originating in or imported from China. He would submit that the appellant herein himself has, in his statement, accepted that he had, in fact, discussed the modus operandi of import of such tiles and evading antidumping duty. It is his submission that the appellant then sourced the market for availability of IEC code from the persons who were in dyre need of finances and located M/s Shobha Plastics Pvt.Ltd. and M/s H.V. Ceramics; and arrangement from Shri Danny of Singapore, M/s PFZ Corporation was also roped in for evading the anti dumping duty. He would submit that M/s Shobha Plastics Pvt.Ltd. and M/s H.V. Ceramics for the money offered by the appellant had given their IEC code and allowed the imports of vitrified tiles by eva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicating authority, while coming to such conclusion that the appellant herein is to be adjudged as an importer in Para 31.3.1 has recorded as under: 31.3.1 From various statements of Shri Nalin @ Bakul Zaverilal Mehta, it is seen that Shri Nalin had clearly stated that: i) It was he who planned the import of Chinese vitrified tiles through Malaysia with the help of Shri Danny of Singapore who was to get the certificate of origin from Malay Chamber of Commerce by forging the documents to show the goods as of Malaysian origin. ii) He asked Shri Jayesh Mehta to act as a Custom House Agent for clearances of subject tiles to be imported. iii) It was on his instruction that Shri Jayesh D. Mehta approached Shri Harshadbhai Vadodaria of M/s Shoba Plastics Pvt.Ltd. and Shri Hitesh Parikh of M/s H.V. Ceramics. iv) The import document in the name of PFZ Corporation were supplied to him by the associate of Shri Danny. v) All the finances relating to import consignment such as remittances abroad, customs duty etc required for the clearances of the imported consignments were arranged by him. vi) Shri Harshadbhai Vadodaria a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rangement, Shri Rupesh Shah, employee of Shri Danny in India had given me import documents of the value of Rs.12 lakhs (approx.) in the name of PFZ Corporation, Vapi, Rupesh Shah had also given me Rs.6 to 7 lakhs (approx.) for payment of Customs duty. I had sent the original documents and the amount of Rs.6 to 7 lakhs to Shri Jayesh Mehta at Vapi for payment of Customs duty and get the clearance of vitrified tiles from the Customs. The goods released from the Customs, were immediately delivered to our buyers, the names of whom were mentioned in my statement dt.29.11.2006. We used to take the payment in cash from our buyers. This payment in cash was further used to get release the subsequent consignments of vitrified tiles imported from Shri Danny Synergy Tradecom. On being asked about the details of sales made and payments received in cash from our buyers of vitrified tiles, I state that at present I do not have the said details, however, I undertake to provide the same on reaching Mumbai. (Emphasis provided) 9. It can be seen from the above reproduced paragraph from the statement of Shri Nalin Z. Mehta, he has stated that for the first consignment which was imported, Shri Danny o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty from him under Section 28 of the Act inasmuch as such demand of duty could be raised only on the 'person chargeable with the duty'. This view, according to the counsel, would largely benefit the department in similar cases. The learned SDR has also referred to Section 28 of the Act and has submitted that the person who files the Bills of Entry is the importer of the goods and the 'person chargeable with the duty' under the said section. We have no reason to disagree. 'Importer' as defined under Section 2(26) of the Customs Act includes any owner or any person holding himself out to be the importer. In the present case, the appellant, by filing the Bills of Entry, held himself out to be the importer of the goods and, therefore, he is the importer for purposes of Section 28 of the Customs Act. Where the taxable event is 'import', the tax has to be paid by the importer. Therefore, the importer is the person chargeable with the duty on the goods imported and presented under the Bill of Entry. Accordingly, we hold that the liability to pay duty, in the present case, is on the appellant. ii) Dhirubhai N. Sheth Vs. CC Bombay 1995 (75) ELT 697 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firm, cannot plead for substitution of his name as the importer, for purpose of, either allowing clearance against those licences or allowing release on payment of redemption fine. It would have been a different question, if M/s. Western Sales Corporation were before us and had sought for clearance and in that case their plea could have been considered. In this case, M/s. Western Sales Corporation have indicated, even before the adjudicating authority, that they are not interested in the goods and they do not want to clear the goods, despite the fact that licences have been produced. Hence, the goods are to be treated as abandoned by the importer and another person, unless he could establish clear title to the goods, cannot claim release of the goods. Thus, in our view, even if confiscation under Section 111(d) cannot be justified, release of the goods to the appellant, in the absence of producing clear title to the goods, cannot be ordered, as pleaded in the appeal memorandum. The Department is at liberty, to dispose of the goods in accordance with the provisions of Section 48 of the Customs Act. iii) Ashwin Doshi Vs CCE Goa 2004 (173) ELT 488 2. After hearing both sides and con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the above three lines are as under: Line No. B/L. No. No. of Bales Marks & Nos. (1) (2) (3) (4) 150 0099/4871 G2 MDS-010 25 C.S-BC/Madras No. 80424/80448 151 C.990/4873 ZMDS-008 G 25 CSC/Madras No. 80374/80398 152 C/089/4872 ZMDS-009 G 25 CSC/Madras No. 80399/80423 Description of Goods Name of the Consignee/Importers White Steam Filature (in all) M/s Continental Silk House, 47, 32nd Main Road, Rajaji Nagar, Bangalore (in all) It will be seen that the Importer is M/s. Continental Silk House, the holders of the bills of lading. The Customs House Agents M/s. Jeena & Co., Madras fried the bills of entry with invoices dated 4-9-1986 of M/s. Brightex, Hong Kong, on 20-9-1986. The goods arrived on 27-9-1986. The bills of entry were admitted by the Department. They were assigned Nos. 5059 to 5061. They were manifested as GM-837/86 Line Nos. 150 to 152 on 29-9-1986. It came to the light of the Customs Department that M/s. Continental Silk House was not in existence and the licence itself had been obtained by fraud and misrepresentation on the strength of fabricated documents. Therefore, a complaint was lodg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, Bombay addressed to the Assistant Collector of Customs (Imports). You are hereby informed that one M/s. Continental Silk House filed three Bills of Entry for the clearance of the consignments under reference and adjudication proceedings were already initiated by this office for confiscation of the goods and imposing penalties on the importers and others by way of issue of show cause notice. Since, adjudication proceedings are underway, your request for noting the bills of entry in favour of your client M/s. J.B. Trading Corporation, Bombay cannot be acceded to. v) Chaudhary International Vs CC Bombay 1999 (109) ELT 371 33. In this connection we find that the department is correct in pointing out that in terms of Section 2 of the Customer Act the importer is one who is the owner of the goods at the time of importation or any other person who holds himself out as the importer before the clearance of the goods. In this respect we observe that since the goods were consigned to M/s. Chaudhary Intt. and the Bill of Lading as well as other relevant import documents were in the name of M/s. Chaudhary Intt., therefore, M/s. Chaudhary Intt. could alone be considered as owner of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Audio Visual Devices gave any letter or stated that they were prepared to take clearance on payment of duty and fine or otherwise. As a matter of fact since it is not a case of high sea sale and there is no indication that the Bills of Lading or Bill of Entry or other documents were endorsed in the name of Sh. Biren Shah/Audio Visual Devices or that they were authorised by M/s. Chaudhary Intt. to make any submissions or admit anything on their behalf, or to clear the goods or to pay duty, fine or penalty on their behalf and there is no evidence that they had held themselves to be importer of the goods before clearance, or there was any other proof to this effect that the Collector must not to have allowed them to clear the goods confiscated by him whether on payment of fine or otherwise. Whether they had abetted in any commission or omission of an offence by M/s. Chaudhary Intt. or otherwise was another matter and a different issue but even if it was so established the goods in any case could not have been allowed to be cleared from the docks or redeemed by Sh. Biren Shah/Audio Visual Devices (as aforesaid whether on payment of fine or otherwise). vi) Hamid Fahim Ansari Vs CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r such a transaction especially where the import of such goods is otherwise not prohibited by law. At any rate, if the respondents have any tenable legal objection on that count, the respondents must pass an appropriate order indicating the legal basis on which the action is proposed and also the nature of the action proposed for such perceived violation of law on the part of the respondents after giving a reasonable opportunity to the importer to meet the case against him. Instead of proceeding to determine the duty leviable on the imported goods by following the appropriate procedure or passing an order of confiscation if they believe that they are justified in the facts and circumstances, the respondents, it appears, are indefinitely detaining the goods without any appropriate order being passed thereon. Such a course of action, in our opinion, is absolutely illegal. 11. In view of the above reproduced ratio of various judgments, it has to be concluded that an importer under Section 2(26) is a person who has filed the Bills of Entry for the clearances and has paid the Customs duty. The above said judgments also lay down a ratio that an IEC code holder cannot be denied the clear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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