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TMI Blog2017 (9) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... it can still be concluded that the appellants do not fall within the statutory scope of “importer” under Section 2(26). Misdeclaration of imported goods - penalty - Held that: - Section 46 deals with entry of goods on importation. The importer of any goods shall make entry thereof by presenting to the proper officer, a bill of entry for home consumption in the prescribed form. A bill of entry shall include all the goods mentioned in the Bill of Lading given by the carrier to the consignor. Section 46(4) stipulates that the importer while presenting the bill of entry shall make and subscribe to a declaration as to the truth of the contents of such bill of entry and shall, in support of his declaration produce to the proper officer the invoice, if any, relating to the imported goods - in the present case, there has been no bill of entry filed by any person. The appellants claim that they have not filed any bill of entry - the Bill of Lading is not an assessing document for custom authorities. It cannot substitute a bill of entry - in this regard, the original authority had fallen in error in appreciating the legal provisions. The appellant did not file bill of entry or did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued at ₹ 19,320/- were ordered to be confiscated under Section 119 with permission to redeem on payment of fine of ₹ 10,000/-. Total customs duty of ₹ 97,79,726/- was determined to be payable on redemption of goods. A penalty of ₹ 50 lakhs was imposed on the appellant under Section 112(a) (i) (ii) of the Act. 2. The ld. Counsel for the appellant contested the findings in the original order and submitted on the following grounds:- (a) The appellant cannot be considered as importer of goods in terms of Section 2(26) of Customs Act, 1962. They are neither owners of the goods nor held themselves out to be the importer. They have denied having imported such consignment. (b) In terms of Section 46, a bill of entry for home consumption or warehousing has to be filed in the prescribed form by the importer of any goods. All the consequences of assessment and penal action are based only on such declarations made by the importer in the said bill of entry, filed in terms of Section 46. In the present case, no bill of entry has been filed by the appellant. Hence, there is no question of misdeclaration or violation of any provisions of Customs Act, 1962. Relia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red for home consumption, includes any owner or any person holding himself out to be the importer. 5. We note that the original authority emphasized on the fact that the Bill of Lading dated !2.01.2012 was bearing the name of the appellant. Based on such Bill of lading, the CHA of the appellant approached the shipping line for delivery order and paid the shipping charges. The Bill of Lading was handed-over to CHA by an employee of the appellant. On these facts, the original authority held that the appellant is the real importer of the goods. We note that the term importer is clearly defined in the Act. It includes any owner or any person holding himself out to be importer. These are to be established by factual enquiry. When the appellant denies that he did not import goods and did not hold himself to be the importer of such goods, then it is for the Revenue to categorically establish that the appellant was indeed the owner of the goods. Except for the Bill of Lading which itself is being disputed as a mistaken transaction by the shipper, there is no other evidence on record to hold the appellant as the importer or person behind the importation of such goods. Admittedly, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions discussed above. 8. The Hon ble Supreme Court in Northern Plastic Limited, AIR 1998 SC 2371 held that the word entry in case of imported goods means an entry made by the bill of entry. Mis-declaration of goods under Section 111(m) would arise if the imported goods do not correspond in respect of value or in any number with that stated in the bill of entry. In Royal Impex - 2007 (2011) ELT 71 (Tri.-Chennai). The Tribunal held that the first option for an importer to declare or mis-declare particulars of the goods imported by him is at the stage of filing bill of entry. He cannot be held liable for any mis-statement of particulars in Bill of Lading or import manifest. The Hon ble Supreme Court in Sampat Raj Dugar and another, (1992) 2 SCC 66 , held that when the person did not pay for and receive the documents of the title, he did not become the owner of the said goods. The Hon ble Supreme Court in Golden Silk Mills Ltd (1999) 8 SCC 744 ) held that the taxable event is reached at the time when the goods reached a custom barrier and the bill of entry for home consumption is filed. Hon ble Bombay High Court in Kabul Textiles - 2006(206) ELT 1173 (Bom) held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consequences applicable with reference to the impugned goods can be confirmed against the appellant. The penalty under Section 112 (a) (b) can be imposed on any person :- (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under Section 111, or abets the doing or omission of such an act, or (b) who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111. 12. In the present case, the appellant did not file bill of entry or did not commit any act or omission which will render the goods liable for confiscation. They were contesting their connection/ownership of the impugned goods. The only evidence available is Bill of Lading issued in the name of the appellant. As already noted, the appellant did not make any attempt to clear the goods or abet any other person in clearing the goods. We find the evidences, as discussed in the impugned order, are not sufficient to bring in penal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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