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TMI Blog2014 (12) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... oms during clearance of the two consignments. We find that supplier has indicated certain HS code for each of the items. The manipulated SPE sheets had the same specification details but did not have these codes but the HSN Code was 8434 2000 in respect of all the items under the two bills of entry. We also note that the managing director or the Company has admitted the manipulation in his statement under Section 108 of the Customs Act. Shri Anil Choudhary also admitted the manipulation even though both of them have tried to put the blame on each other. We also note that Shri Anil Choudhary later on in email addressed to the managing director abroad has spoken about the manipulation being done and perhaps later on was removed from the service. Similarly, the invoice was manipulated. Prima facie we are of the view that the applicants have not made out a case for waiver of duty interest and penalties. During the hearing, advocate for the applicant has indicated that the unit is running into loss, though no documents in support of the same were produced. However, keeping in view the facts and circumstances of the case, we direct the appellant to deposit 50% of the duty demanded in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted by the Chartered Engineer were as under:- a) Permission from Centre and the state government for the kind of plant to be set up b) Allotment of land in food part being developed by Haryana Govt. c) Registration under India Dairy Association vides their registration no. DI/NZ/BM/324/DL for fermented milk d) Permission to draw underground water to the tune of 245 KL per day. e) Permission under boiler act for installation of boilers. f) Permission against pollution using own captive power plant using HSD as main source of energy for boilers from the Pollution Control Board, Haryana g) Permission from Haryana Govt. for discharge of effluent to the tune of 102KL per day to Haryana Government Sewerage System. h) Negotiations have been finalised for the proposed purchase of the Skimmed milk powder from M/s. Warrambool Butter and Cheese factory, Australia. 3. It would be seen from the above list that no documents literature, or the SPE sheets were provided to the said Chartered Engineer relating to two consignments. Based upon the available information the Chartered Engineer certified that he is of the opinion that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eets were manipulated to indicate the said heading instead of actual correct heading . Based upon the investigation, the demand notices were issued and thereafter the impugned order has been passed. In the impugned order, the Adjudicating Authority has confirmed a demand of ₹ 4,22,58,706/-. In addition, the goods have been confiscated and Redemption Fine of ₹ 4,00,00,000/- has been imposed and penalty of amount equal to duty evaded is also imposed under Section 114A of the Customs Act, 1962. In addition, a personal penalty of ₹ 50 lakhs and ₹ 75 lakhs have been imposed under Section 112(a) and Section 114AA on appellant no. 2. A penalty of ₹ 25 lakhs have been imposed on appellant no. 3 under Section 112A of the Customs Act, 1962. 5. The ld. advocate for the applicant's main contention was that they are making probiotic milk from skimmed milk, a dairy product and therefore the machinery imported by them is required to be considered as Dairy machinery falling under 8434 2000 . He also relied upon the certificate of the Chartered Engineer as also another certificate produced by them from Dr. Jashbhai B. Prajapati, Prof, Head, Dairy Microbiology, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of the said assessment order has been filed and therefore, it is not permitted to reopen the issue at this stage. At the time of clearance, matter was examined in detail as is clear from the query memo and the SPE sheets as also printed literature were shown. In view of this, it cannot be said that there was any collusion or suppression so as to invoke the extended period of time and therefore, the demand is barred by limitation. The advocate also argued that there has been no misdeclaration whatsoever by the appellant and therefore the confiscation of the goods is not permitted and no penalty is imposable on the applicants in view of various decisions of the Courts. 8. Ld. AR On the other hand, argued that in any processing plant, there are large number of machinery which are interconnected and the whole plant does not get classified under one heading. Each individual machine is to be examined on merits and is required to be classified accordingly. In case of milk processing plant, there are large number of items which are interconnected and these items have to be examined and classified on merits. The HSN Explanatory Notes mentioned by the appellant clearly indicates that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This they have also projected before their Board meeting that they have saved the customs duty. As far as the chartered Engineer certificate is concerned. ld. AR said that Chartered Engineer only talked about the use of the machinery by the applicants and has not commented on classification. Ld. AR further stated that note 4 of Section XVI is not relevant in the present case as that note is applicable to a machine, and not to the whole plant. Generally, the processing plant constitutes of large number of machines and each machine has to be classified separately. In view of the fact that applicants had presented the manipulated SPE Sheets, invoices/enclosure to invoice the demand is correctly raised and the goods are liable to confiscation and the conduct of the appellant deserves no sympathy and the whole of the duty fine and penalty is required to be recovered immediately. 10. Stay petition was heard at length. We have considered the submission of both sides. We have also gone through the printed leaflet submitted by the ld. advocate at the time of hearing which indicates various parts of the plant. We observe from the said leaflet that the plant has number of tanks and number ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicated that the unit is running into loss, though no documents in support of the same were produced. However, keeping in view the facts and circumstances of the case, we direct the appellant to deposit 50% of the duty demanded in cash within a period of six weeks. Further, the Bank guarantee for the 50% of the duty already executed by the applicant will be kept alive till the final disposal of the appeals. On payment of the said amount, there will be stay for recovery of Redemption fine, penalty and interest. While passing the said order, we keep in mind the Hon'ble Supreme Court decision in the case of Dunlop India. 12. As far as the applicant Shri Kiyoshi Tatsui Oike is concerned, we find that he was the Managing Director at the relevant time and the manipulation has been done with his active knowledge and connivance as admitted by him in his statement. He is prima facie liable to pay penalty. We therefore direct him to deposit an amount of ₹ 15 lakhs within a period of six weeks. 13. As far as applicant Shri Anil Choudhary is concerned, we find that this position was different and he seems to have opposed the said manipulation, and even later on brought the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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