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TMI Blog2017 (10) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... : - penalty u/s 114(a) of the CA, 1962 can be imposed only in respect of the differential liability determined in respect of B/E No.304848 - it would in the interest of justice to reduce the penalty imposed under section 112(a) ibid of Shri MKPP reduced to ₹ 10,000/-. Appeal allowed in part. - C/00144,00145/2008 - Final Order Nos.42240-42241/2017 - Dated:- 10-8-2017 - Ms. Sulekha Beevi C.S. Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri S. Murugappan, Adv. for the appellant Shri A. Cletus, ADC (AR) for the respondent ORDER Per: Bench The facts of the case are that M/s. Esjaypee Impex Pvt. Ltd., [hereinafter referred to as M/s. EIPL ] are the appellant in C/00144/2008 importers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed at by adopting import price as USD 1350/- MT is demandable along with interest liability thereon. The notice also proposed imposition of penalties on M/s.EIPL, Shri Mahendra Kumar P. Parmar, [hereinafter referred to as Shri MKPP ], Managing Director of M/s. EIPL and Shri BMS, (Indenting agent), under various provisions of law. In adjudication, vide impugned order, dt. 23.01.2008, the declared unit prices of goods covered by 23 Bills of Entry were re-determined as USD 1350/MT (C F), differential duties in respect of 2 Bills of Entry No.201428, dt. 06.01.99 and 206827, dt. 11.02.1999 confirmed, and also demand of differential duty of ₹ 21,45,593/- in respect of past consignments were confirmed. Equal penalty of ₹ 21,45,593/- un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action price is higher than what is declared to the Customs in the invoice. Shri BMS is not involved in the process of payment to the foreign supplier. Under such circumstances, merely based on some entries made by a third party in his private records, the demand cannot be made by revising the values of actual importation made. (iii) In the present case, there is no evidence to corroborate the charges made by the department except the sketchy notes kept by Shri BMS. The fax message referred to at page 4 of the impugned order has not been made available to the appellants. Neither, it forms part of the annexure attached to the show-cause notice issued to the appellants. Thus, there is violation of the principles of natural justice with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from what was alleged to be evidence in the hands of Shri BMS. In addition to this, in the present case, the Managing Director has at no point of time offered to pay the differential duty. 4. On the other hand, learned Authorised Representative Shri A. Cletus, supports the impugned order. He further submits that the fax statement containing two sets of value and details of imports made therein had been shown to Shri MKPP, Managing Director of the main importer, who had admitted the same. In his voluntary statement Shri MKPP had admitted to the charge of undervaluing the goods to evade payment of customs duty, which was not retracted or denied subsequently. Hence the contentions raised in the appeal are only an afterthought and are un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of valuation in respect of other consignments imported even when such consignments had been purchased from different seller abroad. On going through the facts, we find merit in this grievance. While the suspected export consignment referred to in the fax message having a value of USD 1150 was sold by M/s.IJIMAPL. The other consignments had been purchased from M/s. Sharich Ltd., Hong Kong. Moreover, the goods consigned to M/s. IJIMAPL as per the invoice were Synthetic Campor Technical Grade , whereas, the goods imported from M/s. Sharich Ltd, Hong Kong were Synthetic Camphor Powder-Technical Grade . These facts are definitely not in dispute. In the event, the show-cause notice admitting to compare the incomparable imports from different s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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