9911796707
TMI Blog2015 (4) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, the goods under seizure are liable to confiscation under Sec.111(f) and 111(i) of the custom act, 1962. Tribunal erred in holding that since no Bill of Entry is filed to clear the subject import, there is no case of mis-declaration. The commissioner has not proceeded on the basis of Section 111(d) of the Customs Act. The Tribunal, however, misconstrued the appeal as one filed by the respondent in a case falling under section 111(d) which is not correct. It is a case of confiscation by invoking the provisions of Sections 111(f) and 111(i). Enormous material has been culled out by the Commissioner to justify invocation of Sections 111(f) and 111(i). The reasons given by the Commissioner on the basis of the admitted fact/statements and the documents established a case that the importers have, in fact, involved themselves in such an import which renders the goods liable for confiscation under sections 111(f) and 111(i) of the Customs Act. The Tribunal misdirected itself by holding that there is no question of mis-declaration as contemplated under Section 111(d), when the Commissioner has not proceeded with the matter in terms of Section 111(d) of the Customs Act. Hence, we h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visory board wherein he had submitted that the gross weight of 1530 Kgs as indicated in the Bill of lading had been corrected by foreign supplier as 7530 Kgs. However, M/s. Tata NYK transport Systems Ltd. Chennai in their letter dated 18-8-01 had informed that they had not received any request for amendment to the manifest either from the importer or the CHA. vi) No Bill of Entry was filed by the importer. Therefore, the DRI officers arrived at the value of ₹ 67,66,578/- by applying Rule 8 of Customs Valuation Rules, 1988. vii) The false declaration of weight and quantity in the Bill of Lading had been done by the importer in collusion with the foreign supplier as admitted by Shri Ravikumar in his statement dated 2-6-01. Therefore, a show cause notice dated 24.08.2001 was issued by the Directorate of Revenue Intelligence (DRI) to Ravikumar, Proprietor of M/s. Royal Impex to show cause as to why, (i) the assessable value of 675 Numbers of retro-reflective sticker rolls should not be fixed at ₹ 68,34,244/-; (ii) the goods under seizure should not be confiscated under Sections 111(d), 111(f) and 111(i) of the Customs Act, 1962; (iii) penalty should not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r particulars of the goods. The Tribunal further held that the order of the Commissioner who sustained the absurdity of the DRI proceedings by an even absurd order has to be set aside. 7. Aggrieved by the order of the Tribunal, the Revenue is before this Court on the above-mentioned substantial questions of law. 8. Learned Standing Counsel appearing for the Revenue reiterated the contentions raised before the Commissioner and pleaded that the Commissioner's order clearly justified the confiscation under Sections 111(f) and 111(i) of the Customs Act, 1962. 9. Heard learned Standing Counsel appearing for the Revenue and the learned counsel appearing for the assessee and perused the materials placed before this Court. 10. Since the questions of law admitted by this Court did not cover the issue involved in these appeals, the same require to be re-framed. Hence, the following questions of law are re-framed for consideration: i) Whether the order of the Tribunal setting aside the order of confiscation passed under Section 111(f) and 111(i) of the Customs Act is erroneous? ii) Whether the order of the Tribunal setting aside the levy of penalty under section 112-A of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same supplier, placed before the adjudicating authority that it is a clear case of mis-declaration of import documents. 13. The details of the nature of such erroneous dutiable goods is not mentioned in the import manifest. The excess goods found concealed in any manner before unloading is stated in the order of the Commissioner in paragraph Nos.9, 10, 11, 12 and 13, which read as follows: 9. Further investigation has revealed that Tata NYK Transport Systems Ltd., in their letter dated 18.8.2001 had informed that they had not received any request for amendment of the manifest either from the importer or from the CHA. This letter has been received after seven months from the date of importation which again shows that the contention of the importer that the quantity shipped was mentioned wrongly is incorrect. No evidence has been produced by the importer, other than bland statements, to prove that the misdeclaration of weight took place because of genuine mistake on the part of the shipper. I have also noticed from the records that the importer has been importing from the same supplier and the subject import is not the first consignment. It is difficult to believe that the sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the admission statement dated 2.6.2001 given by Shri G.Ravi Kumar reflects the factual position. In his reply to the Show cause Notice, Shri.G.Ravi Kumar had stated that his statement to DRI was not voluntary and mere statements are not sufficient to establish under-valuation. It is very important to note that Shri. Ravi Kumar has stated that mere statements will not be sufficient to establish under-valuation, but he has not stated as to what should be done about the under declaration of quantity and value in the subject consignment. He has also not explained as to why no application was made for amending the import manifest for more than seven months. He has produced an amended coy of the Bill of Lading without explaining why for more than two months no application was made to amend the import manifest and why no Bill of Entry was filed. It is strange that after investing a huge amount of money, no Bill of Entry was filed before the Department to clear the goods for more than two months especially in view of the provisions of Section 48 of the custom Act, 1962. While the Bill of Lading was amended by the Shipper's Agent, if there is a mistake as regards quantity the amendm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the filing of Bill of Entry. It is not necessary that the Bill of Entry should be filed and that is a precondition for proceeding against a person, who is a importer, as defined under Section 2(26) of the Customs Act, 1962. Section 2(26) of the Customs Act reads as follows: SECTION 2. Definitions. In this Act, unless the context otherwise requires (26) importer , in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner or any person holding himself out to be the importer Once, the respondent falls within the scope of definition of importer and there is a violation of Section 111(f) and 111(i), in our considered view, the proceedings are justified and the order of the Commissioner, is in order. 16. We are of the considered opinion that the Tribunal erred in holding that since no Bill of Entry is filed to clear the subject import, there is no case of mis-declaration. The commissioner has not proceeded on the basis of Section 111(d) of the Customs Act. The Tribunal, however, misconstrued the appeal as one filed by the respondent in a case falling under section 111(d) which is not co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19. Since the goods are attempted to be improperly imported and that has been admitted by the importer, the consequence by way of penalty would follow. The Tribunal fell into error by stating that merely because the goods have been abandoned and bill of entry has not been filed, it is not a case for imposition of penalty. The right of a person to abandon the goods and seek exemption from payment of duty is under Section 23(2) of the act, but that does not absolve him of his liability to be proceeded against under the provisions of the act for any violation which renders the goods improperly imported and liable for confiscation. The penalty under Section 112(a) of the act is in relation to such conduct of improper importation of goods. 20. The plea of the importer that the import manifest is filed by the steamer and the importer has no role to play appears to be a fallacy. There is no explanation from the importer why the Bill of Entry was not filed or no effort was made to amend the import manifest for more than two months from the date of arrival of the vessel. At the first instance, as an importer, the first respondent chooses to abandon the goods. In the statement rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
