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TMI Blog2017 (4) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... : - Leaving column of invoice value blank, failure to mention invoice number and declaration is also suppression. In these circumstances, there is a clear case of suppression and misdeclaration and therefore, the extended period of limitation has been rightly invoked. Invocation of Section 28 of the CA, 1962 - Held that: - penalty has been rightly imposed as this is a clear case of suppression - option to pay penalty at the rate of 25% of duty has not been extended in the impugned order-in-original. The appellants would be given an option to pay penalty at the rate of 25% of duty subject to payment of entire amount of duty along with interest and the penalty within 30 days from the date of communication of this order. Imposition of pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir unit located in Special Economic Zone (SEZ) to Domestic Tariff Area (DTA). Ld. Counsel informed that they were clearing waste packing material consisting of empty drumps from their unit located at SEZ by filing Bills of entry. In the said Bill of Entry, the value of the said material was being fixed at ₹ 6/- per kg. The said value was fixed by Custom. However, the price at which they were selling those drums were higher than this price at which they were paying Customs duty. Ld. Counsel for the appellant argued that since the price was being fixed by the Custom and each Bill of Entry on clearance was approved by the Custom, there was no charge for suppression or misdeclaration on the appellant and therefore, extended period of li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Therefore, it is not their fault. He argued that when the assessment at ₹ 6/- per kg was prevalent practice since long and during investigation itself, the DRI had enquired consignment and it was found that the said practice started way back in 1990 when the price was fixed at ₹ 5/- per kg. by KASEZ - Custom. 3. He further argued that demand could not have been raised under Section 28 of the Customs Act, 1962 but should have been raised under Section 11AC of the CEA,1944. In support of this, he relied on the following decisions: a) Cosco Blossoms Pvt. Ltd. vs. C.C., Delhi 2004 (164) ELT 423 (Tri- Del.) b) C.C.E Cus. vs. Suresh Synthetics 2007 (216) ELT 662 (SC). He further argued that the price should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Declaration to be signed by the Custom House Agent 1. I/We declare that he contents of this Bill of Entry for goods exported against Bill of Lading No dt .are in accordance with the Invoice No ..dated . and other documents presented herewith. 2. I/We declare that I/We have not received any other document or information showing a different price value, uantiy or description of the said goods and that if at any time hereafter I/We receive any documents from the importer showing the different state of facts I/We will immediately make the same known to the Commissioner of Custom. NB:- Where a declaration in this form is made by the Custom House Agent a declaration in the prescribed form shall be furnished by the impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been mentioned. All these facts point to a clear mis-declaration. Leaving column of invoice value blank, failure to mention invoice number and declaration is also suppression. In these circumstances, we find that there is a clear case of suppression and misdeclaration and therefore, the extended period of limitation has been rightly invoked. 9. The next argument raised by the appellant is that Section 28 of the Customs Act, 1962 cannot be invoked in such cases and for that argument, they have relied upon the following decisions: a) Cosco Blossoms Pvt. Ltd. vs. C.C., Delhi 2004 (164) ELT 423 (Tri- Del.) b) C.C.E Cus. vs. Suresh Synthetics 2007 (216) ELT 662 (SC). It is seen that decisions in both the cases in Cosco Bloss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dinesh Lekhak (Commercial Manager), Shri Rajendra Shrivastav, Logistic Officer and Shri Pradeep Kumar (Factory Manager) on the ground that they were aware of the existence of the contract/commercial invoices showing price different from the assessable value declared in the Bills of Entry. It is noticed that Shri Kishor Chand Katoch in his defence pleaded that this practice was prevalent for many years. In his defence, he has pleaded that the said practice was going on, even prior to his joining of the unit. Identical defence has been taken by Shri Dinesh Lekhak, Shri Rajendra Srivastav and Shri Pradeep Kumar. From the above facts, it is apparent that the employees had nothing to gain from the practice. Though these employees were aware of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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