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TMI Blog2019 (4) TMI 948X X X X Extracts X X X X X X X X Extracts X X X X ..... side then it will not imply that relief has been granted to the all the noticees. Jurisdiction - power of Additional Director DRI to issue SCN - Held that:- The issue is decided in the case of SUNIL GUPTA VERSUS UNION OF INDIA AND OTHERS [2014 (12) TMI 151 - BOMBAY HIGH COURT] - decided against appellant. There are no merits in the contentions raised by the appellants in their appeal or during the course of arguments - appeal dismissed - decided against appellant. - Appeal No. C/86499/2017 With C/87209/2017 - A/85722-85723/2019 - Dated:- 12-4-2019 - Mr. S.K. Mohanty, Member (Judicial) And Mr. Sanjiv Srivastava, Member (Technical) Shri Anil Balani, Advocate for the Appellant Ms. Trupti Chavan, Authorised Representative for the Respondent ORDER PER: SANJIV SRIVASTAVA These appeal are directed against order in appeal No 104 to 110 (Gr.IV)/2017(JNCH)-Appeal-I dated 21.2.2017/28.2.2017 of the Commissioner Custom (Appeal-II) Nhava Sheva. By the said order Commissioner (Appeal) has held as follows: 27. In view of the above, I uphold the Order in Original No 1373/2015-16 except portions s(i) and t(i),(ii),(iii) and (iv) of order portion of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.4 After completion of investigations a show cause notice dated 25.11.2009 was issued to a number of noticees. Para 15 of the Show Cause Notice reads as follows: 2.5 Show cause notice was adjudicated by the Additional Commissioner of Customs Nhava Sheva vide his order as indicated in para 1, supra. 2.6 Against the said order of Additional Commissioner which covered 10 noticees, appeals were filed by 7 noticees namely M/s Bhitti Impex, M/s Dee Vee Metals, M/s Mittal Pigments Pvt Ltd, M/s Associated Stabplast Chemicals, M/s Premier Pigments and Shri Ramesh Aggarwal Director of M/s Mittal Pigments and Shri S Ayyappan Partner of Premier Pigments, before the Commissioner (Appeals). Commissioner (Appeal) has by order in appeal No 104 to 110 (Gr. IV)/2017/(JNCH)- Appeal-II disposed of the Appeals of these seven appellants. 2.7 At present we are concerned with the appeals filed by M/s Bhitti Impex [Appeal No 86499/17-Mum] and Shri Dileep Kumar Dugar [Appeal No C/87209/17-Mum] 2.8 Tribunal has vide its order No A/85100-85101/18 dated 23/01/2018 disposed of the Appeals filed by M/s Mittal Pigments Pvt Ltd [C/86768/2017-Mum] and Shri Ramesh Agarwal [Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orter, whereas in the case now under consideration appellants have purchased the goods directly from the foreign supplier. Since the goods were purchased directly from the foreign supplier the invoices issued by the foreign supplier assume significance for the purpose of determination of assessable value. ii. In the case of present appellants the duty has been determined and paid after determination of value under Section of Customs Act, 1962 on the basis of actual transaction value, and not on the basis of fixed tariff rate. iii. Tribunal has vide its order No A/85502-85509/2018 dated 14.03.2018, has in similar circumstance relying on similar evidences upheld the charge of under valuation. iv. Jurisdiction High Court has in case of Sunil Gupta vs Union Of India [2015 (315) ELT 167 (Bom)], has held that after amendments made in the Custom Act, 1962 in 2011, DRI officers have the jurisdiction to issue the show cause notice. 5.1 We have considered the submissions the made in appeal and during the course of arguments. 5.2 The first issue that needs to be considered is whether by the order dated 23.01.2018, the entire order of Commissioner (Appeal) has been set aside in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.05 57.8 142090 8 M/s Premier Pigments 628455 23.11.05 105.66 259140 9 M/s Bhitti Impex 784790 17.01.05 Shredded Brass Scrap Turnings Nomad 25.27 10 800890 09.02.05 25.92 11 814415 05.03.05 22.55 12 871924 19.05.05 Brass Scrap Honey 21.44 13 877857 27.05.05 26.28 Additional Commissioner has while adjudicating the case separately examined the issue in respect of each importer (person filing the Bill of Entry), and confirmed the demand separately in each case. He also examined the role of each of the noticee and adjudicated in respect of imposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any of the situations have become final against him. Then what happens is that after an year, five years, ten years, twenty years or even much later, a decision is rendered by a High Court or the Supreme Court in the case of another person holding that duty was not payable or was payable at a lesser rate in such a case. (We must reiterate and emphasise that while dealing with this situation we are keeping out the situation where the provision under which the duty is levied is declared unconstitutional by a court; that is a separate category and the discussion in this paragraph does not include that situation. In other words, we are dealing with a case where the duty was paid on account of mis-construction, mis-application or wrong interpretation of a provision of law, rule, notification or regulation, as the case may be.) Is it open to the manufacturer to say that the decision of a High Court or the Supreme Court, as the ease may be, in the case of another person has made him aware of the mistake of law and, therefore, he is entitled to refund of the duty paid by him? Can he invoke Section 72 of the Contract Act in such a case and claim refund and whether in such a case, it can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d validated. They have been given a retrospective effect. These Notifications were holding the field and were not quashed or set aside. In the teeth of such Notifications, the legislature stepped in to clarify the position that if the functions of the Customs officer can be entrusted or assigned by the Central Government or the Board in terms of Section 6 of the Customs Act, 1962, then, all such Notifications, have been validly issued and enforced. They enable the Parliament to clarify that the officers mentioned therein shall be deemed to be the proper officers for the purposes of Section 17 and 28 of the Act. Precisely, that has been done in the instant case. 24. If that has been done, then, no assistance can be derived from the Judgment of the Hon ble Supreme Court in the case of Sayed Ali (supra). There, for want of jurisdiction or competence in the Collector of Customs (Preventive), the show cause notice was quashed by the Tribunal and that order was upheld by the Supreme Court. Before us, the issue is not whether any Collector of Customs (Preventive) could be said to be on par with the officers mentioned in the earlier Notification dated 26th April, 1990. The assign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... namely those from the Directorate of Revenue Intelligence having been entrusted and assigned the functions as noted above, they are deemed to have been possessing the authority, whether in terms of Section 28 un-amended or amended and substituted as above. In these circumstances, for these additional reasons as well, the challenge to this sub-section must fail. The decision of Delhi High Court relied upon by the appellant counsel has been stayed by the Hon ble Apex Court. In view of direct decision of the jurisdiction High Court on the subject we do not find any merits in this submission too. 5.6 Now coming to issue in hand Counsel for appellants have relied upon the decision of tribunal, in case of Mittal Pigments [Order Dated 23.01.2018]. In his view this decision squarely covers the case of present appellants. He relied on para 5 of the said decision, reproduced below: 5. After hearing the rival submissions of both parties and in the light of above discussion, we are of the view that department has failed to collect corroborative evidence. It may be mentioned that such uncorroborated allegations cannot be made the basis for assessments of imports/ exports as held b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through Consulate General of India ((Trade) for the impugned consignments submitted for clearance of the consignments. The facts as noted by the Tribunal in the said order is that the M/s Mittal Pigments had purchased the goods on High Sea Sale from Shri Dileep Dugar. It would be on the basis of sale price between Shri Dileep Dugar and M/s Mittal Pigments, that relevant documents for clearance of import consignment would have been filed. Thus the transaction value for determination of the assessable value would be sale price on High Sea Sales and not on the sale price between the foreign supplier and the Appellants therein. Further as noted by the Tribunal albeit wrongly that the appellant i.e. had paid the custom duty on the fixed tariff rate. Since the facts of present two appeals are entirely different and are in respect of the imports, undertaken by M/s Bhitti Impex and M/s Dee Vee Metals directly from the foreign supplier located in Germany, the case considered by the tribunal earlier is distinguishable. 5.8 Further from para 5 of the order of Tribunal, it is observed that tribunal has noted that consignments were subjected to fixed tariff rate . This fact as reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained from supplier M/s Delbi Fibres. Those documents are invoices, bill of exports, bill of lading and M/s Delbi Fibres in the said enquiry also submitted co-relation chart. On close scrutiny of these documents, we find that the invoice no. and date are matching with those invoices. Bill of export, bill of lading etc produced by M/s Delbi Fibres to Italian Customs authorities showing the higher value. 6.1 As regard authenticity of these documents, there cannot be any doubt for the reason that Italian Customs authority has obtained these documents directly from the supplier M/s Delbi Fibres and the same was obtained by the High Commission of India, U.K. From perusal of these documents, it cannot be said that these documents are authentic. 6.2 As regard the issue raised by the learned Counsel that the invoices was unsigned, we do not find much force in the arguments of the learned Counsel for the reason that other corroborative evidence of bill of lading, bill of export etc which are duly signed and showing the corresponding invoice details and the higher value. As per the chart prepared and submitted by M/s Delbi Fibres, it is clearly shown that even the total payment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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