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TMI Blog2016 (2) TMI 1141X X X X Extracts X X X X X X X X Extracts X X X X ..... ited this sum on their behalf. The Revenue has contested this fact and stated that the deposit made by M/s. VIL was towards the duty liability of M/s. VIL only. In this same SCN, a duty of ₹ 127.30 crores has been demanded from M/s. VIL. M/s. VIL and M/s. Applicomp India Ltd. are two separate legal entities and therefore, the liability of M/s. Applicomp cannot be adjusted against the payment made by M/s. VIL. Thus, M/s. Applicomp India Ltd. has not fulfilled the condition (c) of the First proviso to Section 127(B)(1) of the Customs Act, 1962 and is liable to be rejected on this ground alone - The Bench has also observed that the applicant is not interested in settling of their case and is asking adjournments on one ground or other. It appears that the applicants are adopting this tactic to delay the proceedings before the Commission. The Commission is statutorily bound by the time limit laid down by the statute to settle the cases and cannot indefinitely postpone the matter without any solid and cogent reasons. The whole tactic adopted by the applicant is to simply delay the proceedings and to gain time and for that they give different excuses at different time. The applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t No. 4 ) 4672/2015 30-3-2015 6. Sh. Rajendra Kedarnath Bang (hereinafter referred to as the co-applicant No. 5 ) 4673/2015 30-3-2015 7. Sh. Abhijit Ramakant Kotnis (hereinafter referred to as the co-applicant No. 6 ) 4674/2015 30-3-2015 8. Sh. Mahadevan Vishwanathan (hereinafter referred to as the co-applicant No. 7 ) 4675/2015 30-3-2015 9. Sh. Mukund Dattatray Badwe (hereinafter referred to as the co-applicant No. 8 ) 4676/2015 30-3-2015 10. M/s. Kail Ltd., Survey Nos. 6-11, Krishnasagara Village, Sector V, Block BP, Bidhan Nagar, Salt Lake, Kolkata - 700005 (hereinafter referred to as the applicant No. 2 ) 4677/2015 30-3-2015 11. Sh. Rajendra Kedarnath Bang (hereinafter referred to as the co-applicant No. 9 ) 4678/2015 30-3-2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 20 ) 4691/2015 30-3-2015 25. Sh. Mahadevan Vishwanathan (hereinafter referred to as the co-applicant No. 21 ) 4692/2015 30-3-2015 26. Sh. Mukund Dattatray Badwe (hereinafter referred to as the co-applicant No. 22 ) 4693/2015 30-3-2015 27. Sh. Sunil Kumar Jain (hereinafter referred to as the co-applicant No. 23 ) 4694/2015 30-3-2015 2. Facts of the case in brief are that the officer of the DRI gathered some intelligence that M/s. Videocon Industries Ltd. (the co-applicant No. 1) in association with its group/associate companies are indulging in evasion of payment of Anti-Dumping Duty (in short ADD ) on the import of 14 and 21 Coloured Picture Tube (in short CPT ), by artificially enhancing the assessable value of the imported goods. 3. Accordingly, a preliminary enquiry was conducted, which revealed that co-applicant No. 1 was having registered office at Aurangabad, Maharashtra, and manufacturing facilities at Auran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imported from M/s. TGDC M/s. TTD came down to the pre-ADD level. Further, during the ADD-period they imported 14 CPT at a declared import value of USD 26 C F, which come down to USD 16 C F thereafter. 6. The investigations culminated into the issuance of the SCN alleging that M/s. VIL had managed and controlled affairs of the suppliers of the 14 and 21 CPT, i.e. M/s. TGDC and M/s. TTD, and also the affairs of the applicant co. Thus forming a web of group/associate companies in India as well as abroad and started artificially jacking up the price of 14 and 21 CPTs imported from suppliers in order to match the threshold value prescribed in the ADD Notification, holding it out as unrelated transaction value by suppressing the relationship between the suppliers and the importers. Adopting such modus operandi, they continued to import the goods in India. However, the ADD which was supposed to be paid to the Govt. exchequer was transferred to the suppliers who were their own group/associate companies. 8. The role of co-applicant as allegation in the SCN is as under :- 8.1 Sh. Abhijit Ramakant Kotnis (the co-applicant Nos. 6, 9, 15 and 20) : It has been alleged that being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te companies. He had accepted in his statement that he never checked costing details of the CPTs nor did he check for any justification for such a steep upward revision in prices CPTs in July/August, 2008 imported from M/s. TGDC, that too only for the ADD levy period. 8.6 Regarding the co-applicant No. 1 it has been alleged that they were the actual beneficiary and it was they who along with their group/associate companies had created a web to plan evasion of anti-dumping duty. 8.7 The co-applicant No. 2 was the high sea seller, who imported the overvalued goods from the suppliers and sold the same to the applicant No. 1 on high sea sale basis and was a part of the conspiracy to evade payment of ADD. 8.8 The co-applicant No. 3 being the supplier of the CPTs, had in collusion with M/s. VIL and the applicant Nos. 1 to 4 have allowed to issuance of invoices showing a higher value for the imported goods and hence become a party to the conspiracy hatched to evade the payment of ADD. 9. The ADD so evaded by the applicant Nos. 1 to 4 and VIL has been calculated in the SCN, as under :- Sr. No. Name of the importer Port of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncipal Commissioner of Customs, Mundra, Custom House, A.P. SEZ, PUB Building, Mundra (Kutch)-370421 6 M/s. Value Industries Ltd. ICD, Waluj-Aurangabad B1 B2 20897490 14100505 6936522 Commissioner of Customs, Central Excise Service Tax, Aurangabad Commissionerate N-5, Town Centre, CIDCO Aurangabad-431030 Grand total 6698156846 5340236294 1337915230 10. The SCN also proposed for imposition of penalty on applicant Nos. 1 to 4 under Section 112(a) of the Act. 10.1 The SCN proposed to impose penalty on the co-applicant Nos. 1, 2 and 3 under Section 112(a) of the Act. 10.2 On all the other co-applicants, the imposition of penalty has been proposed under Section 112(a) and Section 114AA of the Act. 10.3 Apart from this the SCN also proposed for confiscation of imported goods under Section 11(d) and (m) of the Act. 11. The applicant Nos. 1 to 4 have filed separate settlement applications accepting duty liability, as under :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were made by the applicant Nos. 2, 3 and 4. However, they have made import directly from the foreign supplier and not purchased any consignment high sea sale basis. They, however, have sold the consignments on high sea sale to the applicant No. 1. 11.3 All the co-applicants except the co-applicant Nos. 1, 2 and 3 in their respective settlement application have submitted that though they have been charged of aiding and abetting with other importers for misdeclaration of value but they in their individual capacity had not interacted with any importer or had not done any act which can be construed aiding and abetting with these importers. 11.4 The co-applicant Nos. 1 and 2 in their application submitted that the charge against them in the SCN regarding aiding and abetting is untenable and they have not violated any provision of the Act or any other Rules and Regulations thereunder. 11.5 The co-applicant No. 3 in their application submitted that they are situated outside the territory of India, hence the Indian law including the provisions of the Act is not applicable to them. No case has been initiated against item by the Chinese Custom, under whose jurisdiction they fall. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ama for appearance before the Commission because the NOC from earlier Counsel is yet to be received. He asked for time to get the NOC from earlier counsel. Shri V.R. Shambhu, General Manager appearing for M/s. Millennium Appliances India Ltd. stated that they have not received the comments of the jurisdictional Commissioner from the Commission. When it was pointed out to Shri V.R. Shambhu, GM that no comments has been received in this case from the Commissioner, he requested that the case may be adjournment to some other date because he is not prepared to argue. Shri K.M. Mondal, Spl. Counsel and Shri K.M. Gujanan, SIO, DRI appeared for the Revenue. Sri K.M. Mondal, ld. Spl. Counsel stated that the department has given a detailed submission vide their letter dated 6-1-2016 and in addition the ld. Spl. Counsel made the following submissions : (i) Admittedly, the SCN dated 30-12-2014 is a composite/consolidate SCN issued to various parties demanding Anti-Dumping Duties separately from them and also proposing imposition of penalties on them for contravention of various provisions of the Customs Act, 1962 and the Customs Tariff Act, 1975. Whether such a SCN can be settled in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 crores (including the above ₹ 5 crore) towards its duty liability. Out of this amount, an amount of ₹ 28.95 crores is proposed to be adjusted against the time barred duty liability of M/s. VIL, leaving a balance of ₹ 1,04,14,312/-which can be adjusted against the pending dues of M/s. VIL, only. 17. The Bench has carefully gone through the record and submissions made by both the sides. The Bench observes that M/s. Applicomp India Ltd. (Applicant No. 1) has pleaded that a sum of ₹ 5 crores deposited by M/s. VIL may be treated as payment towards their duty liability because the VIL has deposited this sum on their behalf. The Revenue has contested this fact and stated that the deposit made by M/s. VIL was towards the duty liability of M/s. VIL only. In this same SCN, a duty of ₹ 127.30 crores has been demanded from M/s. VIL. M/s. VIL and M/s. Applicomp India Ltd. are two separate legal entities and therefore, the liability of M/s. Applicomp cannot be adjusted against the payment made by M/s. VIL. Thus, M/s. Applicomp India Ltd. has not fulfilled the condition (c) of the First proviso to Section 127(B)(1) of the Customs Act, 1962 and is liable to be re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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