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TMI Blog2019 (1) TMI 1123X X X X Extracts X X X X X X X X Extracts X X X X ..... in the consignment under importation are not the goods as declared by the appellants. By mis-declaring the goods, appellants have sought to clear certain goods which were old and used. The clearance of such old and used goods for home consumption in India is not permitted under Export Import policy 2015-20 (Para 2.31 read with Notification No 35 (RE-2012)/2009-14 dated 28.02.2013), without proper authorization from Director General Foreign Trade - the charge of mis declaration of the consignment in terms of description, quantity and value is well founded. There is no merit in the submission of the appellants that the goods were wrongly shipped by the shipper. In fact, these goods were sought to be imported into India contrary to the EXIM Policy restriction and also by grossly undervaluing the same. There is no merit in the submission of the appellants with regards to bonafides, which in any case is not established in this case. Penalty u/s 112 of FA on Appellant Company and its Director - Held that:- Since the Appellant Company and its Director have by their acts of omission and commission have rendered the goods liable for confiscation penalty imposed on them under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any other person under the provision of Customs Act, 1962 or any other law for the time being in force in India. 2.1 Appellants have filed a Bill of Entry No 5710820 dated 23.03.2018 for import/ clearance of Computer Parts, Memory Modules and declared the value as ₹ 11,89,97/- covered by MAWB No 16041242585 dated 06.02.2018. On the Bill of Entry shipper was shown as M/ Decimal General Trading LLC Dubai UAE. 2.2 Since the description of the goods on the ill of Entry was fund to b vague/ inadequate and a large quantity of obsolete goods (2 GB DDR2 Hynix Memory Module) was imported by the importer the goods were detained and taken up for 100% examination. He goods were examined in presence of Panch witness and in presence of authorized representative of the Customs Broker. On examination the goods were found to be grossly misdeclared in terms of description (brand/ make/ model), quantity and value. Also some items (Intel Microprocessors) in the consignment were found to be old and used. Accordingly the goods were seized under a seizure memo dated 11.05.2018 under section 110 (1) of the Customs Act, 1962, as these goods were liable for confiscation under Section 111 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be wholly unjustified to attribute misdeclaration on them. ii. The request for re-export is not an afterthought and was made immediately when the shipper came to know about the error. iii. MAWB is issued by the carrier airline after the receipt of goods on the basis of declaration made by the shipper or the forwarder of the goods on behalf of shipper. iv. They have not manipulated or fabricated documents and the allegations made in the show cause notice/ order to this efcet are not sustainable. v. Method of valuation adopted by the revenue vague, cryptic, esoteric and incorrect. vi. Appointment of chartered engineer to examine the goods not proper and legal. vii. There was no motive to mis-declare the goods and bonafides of importer are not in doubt. viii. They rely on following decisions in their support a. Guru Ispat Ltd [2003 (151) ELT 384 (T-Kol)] b. Regal Impex [2016 (332) ELT 835 (T-Del)} c. Siemens Public Communication Networks Ltd. [2001 (137) ELT 623 (T-Kol)] d. HCL Comnet Systems Services Ltd [2003 (158) ELT 349 (T-Del)] e. Sripathi Paper and Board Pvt Ltd [2014 (3130 ELT 664 (T-Chennai)] 4.1 We have heard Shri C K Chaturvedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imed that the goods have been mis-sent by the shipper. iii. Appellants had sought the clearance of the goods sent under the cover of said MAWB by presenting the Bill of Entry as referred. Once the importer file the Bill of entry he has to take the responsibility of the goods covered by the said Bill of Entry. iv. The appellants have not be able to produce any evidence to show their bonafides in the matter. Certain e mail correspondence between them and their shipper that too after detention of the goods do not inspire confidence. v. In the present case the goods were shipped under the MAWB dated 6.02.2018. The Bill of Entry in the present case has been filed only on 23.03.2018 and examination undertaken on 26.03.2018. In a period of more than a month shipper has not made any correspondence with regards to the goods being mis-sent. This itself shows that importer has sought the clearance of the goods by mis-declaring them, and for the act of misdeclaration the goods have been appropriately held liable for confiscation under section 111 of The Customs Act, 1962 vi. Further the goods have been found to be grossly mis-decalared in terms of value also. vii. Certain goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Number 1 KB-3 Hyper-X Fury 8 GB DDR4 2400 Mhz Kingston 50 2(a) KL-7 Processor CPU I3-2100 Intel 191 2(b) KL-7 Processor CPU I3-2120 Intel 192 2(c) KL-7 Processor CPU I3-2130 Intel 10 2(d) KL-7 Processor CPU I3-3220 Intel 201 2(e) KL-7 Processor CPU I3-3225 Intel 3 2(f) KL-7 Processor CPU I3-3245 Intel 1 2(g) KL-7 Processor CPU I3-3240 Intel 19 2(h) KL-7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 GB DDR4-Kingston Kingston 102 11(d) KL-8 16 GB DDR4-Kingston Kingston 100 11(e) KL-8 4 GB Class 6 Micro SD Cards ADATA 10000 11(f) KL-8 8 GB Class 4 Micro SD Cards ADATA 10000 11(g) KL-8 8 GB Class 10 Micro SD Cards ADATA 7200 5.3 From Table 1 and Table 2, it is quite evident that the goods actually imported are not the same as those declared in the Bill of Entry, but are entirely different set of goods. This clearly shows that the appellants have misdeclared the goods on the Bill of Entry and have sought clearance of undeclared and misdeclared goods in this manner. Appellants do not dispute that the goods found on examination were not the same goods as declared by them on the Bill of Entry. However appellants have submitted that since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f loading, Hong Kong, has made a serious blunder; That the goods arrived at ACC Mumbai on 21.03.2018 and they filed the Bill of Entry soon after on 23.03.2018 without realizing discrepancy in the shipping documents to avoid penal provisions contained in Section 46 of the Customs Act, 1962; That they received an E-mail from the supplier on 25.03.2018 informing them of the wrong shipment of the goods; that the said email clearly demonstrates that the goods have been wrongly shipped and were meant for some other client of theirs in Dubai; that the supplier realizing his mistake has asked vide the said email for the goods to be shipped back to him; That they submitted a request letter on the very next working day viz. 26.03.2018 seeking permission for the re-export of the goods back to the supplier even before the inspection and examination of the goods; That it would be evident from the Bill of Entry that the incidence of Customs duty on the goods intended to be imported by them is nil; that only IGST is payable for which credit can be obtained at the time of sale of goods; that thus there is no motivation for them to intentionally mis-declare the goods for any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e chronological sequence of events at hand which do little to support this ingenuous theory being propounded by by the noticee. First and foremost is the fact that MAWB pre-dates the purported invoice/ purchase order and the second fact is that the application for re-export is post the detention of the goods. Merely on the ground that the department did not serve a serve a communication to the importer after detention but before the receipt of the request for re-export, it cannot be said proved that the importer was ignorant of the fact of detention. It sounds too much of coincidence that the email from the supplier was also received after the detention of goods and not before it. The fact of the matter is that the importer had filed a Bill of Entry and it was the duty/ liability of the importer to declare the contents of the consignment correctly in the Bill of Entry and the importer can certainly not take refuge in the amendment of Customs Act (amendment of Section 46 which mandates filing of Bill of Entry within prescribed time or else pecuniary penalty on account of delay) to justify mis declaration. It sounds to be too much of a coincidence that despite the contention of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g list, revised bill of lading, etc. describing the goods as old and used diesel engines, spare parts and scrap and purporting to seek clearance under OGL. The Appraiser prepared a list of valuation, according to which correct value of diesel engines and spare parts would be much more than the value declared by the appellant. On 1-12-1995 goods were seized. Show cause notice dated 28-5-1996 was issued alleging violation of licensing requirement, alleging fraud and manipulation in the import of diesel engines, and spare parts in the garb of scrap, mis-declaration of description and mis-declaration of value and proposing confiscation of the goods and imposition of penalty on all the above grounds. 3. Appellant resisted the notice contending that an order had been placed before the supplier over telephone for supply of Heavy Melting Scrap No. 1 in August, 1995 but a shipment intended for some other party and containing used diesel engines, auto scrap etc. were wrongly shipped to the appellant. It was pointed out that even on 30-10-1995 the supplier s bank, that is, Bank of Baroda, had sent a telex message to Punjab National Bank, the importers bank, seeking return of the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng call to Delhi Telex No. 3165628 from Singapore. In these circumstances, Collector was justified in rejecting the assertion of the appellants. Considering the totality of the facts and circumstances of this case, we observe that it was not at all difficult for Shri Uppal to obtain a solicited telex to meet the enquiry already started by D.R.I. and the Collector was justified to hold that the appellants were guilty of deliberate misdeclaration and to confiscate the goods under Section 111(m) of the Customs Act. The excess goods which were imported in the consignments, but not declared in the bills of entry are also liable to confiscation under Section 111(l) of the Customs Act. The value of the excess goods was not declared in the bills of entry, which also rendered the goods liable for confiscation under Section 111(m) of the Customs Act. 5.12 Hon ble Delhi High Court has in case of Muscles Fusion FZE [2017 (354) ELT 525 (DEL)] held as follows: 23. The submission that the same was a bona fide mistake clearly appears to be an afterthought. This stand of the petitioner is not borne out from any contemporaneous documents on record. There is no invoice, airway bill, pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted into India contrary to the EXIM Policy restriction and also by grossly undervaluing the same. There is no merit in the submission of the appellants with regards to bonafides, which in any case is not established in this case. Hence the decisions of Tribunal relied upon by the appellants are clearly distinguishable. 5.13 Role of the Appellant Company and its Director has been well discussed in the para 14.2 and 14.3 of the order. The said para are reproduced below: 14.2 As detailed above, it appeared that the importer imported the goods covered by BE No.5710820 dated 23.03.2018 which were found to be mis-declared in terms of description, quantity, value as well as some undeclared and old used goods were also found during examination. Further the importer appeared to have deliberately tried to mislead the investigation by producing shipper s invoice/purchase order dated 12.02.2018 whereas the MAWB is dated 06.02.2018, and by submitting that some more cartons were added to their shipment which were meant for the vendor s Dubai based client, appeared to be nothing more than an afterthought, as the importer has submitted the same after having known that the subject consign ..... X X X X Extracts X X X X X X X X Extracts X X X X
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