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TMI Blog2019 (2) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... with ADD when imported from China, it was obvious that no additional reference in such ADD notification or any alternative chemical name or formula of the said item. In any case, in the normal course of business and trade and especially imports, the goods are only known by the chemical name and certainly not by the chemical formula run into almost four lines. Then, there is no doubt in our mind that the chemical formula was declared instead of the chemical name only to trick the assessment system and to evade ADD which would have been otherwise imposable on its import. Penalty on Sujath Ali, Partner of K.S.R. Pharmacy - the entire exercise was planned and furthered by Sujath Ali - Held that:- The duty / interest has not been demanded fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .R Pharmacy, Chennai (hereinafter referred to as KSR) had attempted to clear Ceftriaxome Sterile by declaring its chemical name as {6R-(6a, 7B)} -7- [{2-Amino 4 Thiazolyl (Methoxyimino) Acetyl} Amino]-8-oxo-3 { (1,2,5,6 - Tetrahydro-2-Methyl-5,6 - dioxo 1,2,4 -triazin-3-yI) thio} methyl] 5-thia-1-azabicyclo [4,5,0] octo-2-ene-2-carboxylic acid disodium salt instead of its generic name viz. Cetriaxone Sodium which originated from China in order to evade Anti Dumping Duty (ADD). Scrutiny of similar imports made by the other importers was carried out by Special Intelligence and Investigation Branch (SIIB). It was noticed that identical goods were imported by M/s.MSK International, Chennai vide Bills of Entry dt. 18.2.2009, 11.4.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioning in the said address. On further enquiries, it was noticed that one Shri Saravanan Krishnamurthy declared as the proprietor of MSK International in the IEC was residing in one of the flats of the said apartment. However, no incriminating documents were recovered from the premises. Shri Saravanan handed over the copies of all the Bills of entry filed in the name of M/s.MSK International, Chennai. Summons were issued by the department to Shri K. Saravanan who appeared before the department and in his voluntary statement dt. 30.09.2009, he stated interalia that he had applied and got IEC registration number in the name of MSK International to start an import business, but he had not imported any goods; that as requested b his friends S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leging misdeclaration of goods, undervaluation and also proposing for confiscation of the goods, demand of duty and imposition of penalties. After due process of law, the original authority rejected the price declared and re-determined the price at the rate of USD 87.50 (CIF) per kg and ADD @ USD 77.35 per kg. was also imposed on the aforementioned three Bills of Entry as per Notification No.98/2008-Cus. dt. 27.08.2008. Thus total differential duty of ₹ 1,47,28,161/- was confirmed along with interest and ₹ 28,33,472/- paid during investigation was appropriated. The adjudicating authority also held that the goods totally valued at ₹ 1,61,77,000 (AV) are liable for confiscation under Section 14 of the Drugs Cosmetics Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm, K.S.R. Pharmacy and penalty under Section 114A cannot be levied on him as he is not chargeable with duty and further the notice only proposed penalty under Section 114A on him for rendering the goods liable for confiscation; that penalty under Section 13 (b) of Drugs and Cosmetics Act, 1940 is not imposable by a customs authority as that provision relates to punishment for offences by a court of law. 5. On the other hand, Ld. A.R Shri B. Balamurugan supports the impugned order. He took note of the Ld. Advocate s submissions for enhancement of value and levy of ADD are not disputed. However, Shri Sujath Ali, Partner of K.S.R. Pharmacy was the kingpin of the entire modus operandi to import prohibited Ceftriaxone Sodium‛ in the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.R. Pharmacy on imported impugned goods. In the normal course, we would not have faulted imposition of penalty under the provisions of the Customs Act, 1962 as applicable on the said Sujath Ali. However, penalty under Section 13 (b) of the Drugs and Cosmetics Act, 1940 read with Section 114A of the Customs Act, 1962. In this regard, we find merit in the Ld. Advocate s contention that the said Section 13 (b) relates to punishment for offences which are to be awarded by a court not inferior court of a Metropolitan Magistrate or of a Judicial magistrate of the first class as has been clearly laid down in Section 15 ibid. More importantly, Section 114A of the Customs Act, 1962 mandates penalty equal to duty or interest so determined only on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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