9911796707
TMI Blog2019 (6) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... market and realized Customs duty, Revenue could invoke suitable provisions of Law to recover that amount from M/s J.K. International. It is not open to department to recover the duty from M/s JK International in terms of proviso to Section 28 of Customs, Act, 1962. Therefore, to that extent, the show cause notice and the order is not maintainable. As the demand made on M/s J.K. International is not sustainable under Section 28 of Customs Act, 1962, we are not going in to the merits of valuation of the goods. Imposition of penalties - HELD THAT:- There is force in the submissions made by the Learned AR that Shri Jeetendra Shah, in his statement recorded during investigation, stated that he along with Shri Mukesh J. Shah and Shri R. D. Mehta had supervised the imports under ATA Carnet; all the imports were at the behest and directions of Shri Mukesh J. Shah and he acted as per directions of Shri Mukesh J. Shah; Billiards of Tulsa sold all the machines to M/s. J. K. International, which were subsequently sold to M/s. Galaxy Fun world Pvt. Ltd. It is pertinent to note that the statement was not retracted and therefore, has evidentiary value - both M/s J.K. International and Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by the Appellants, CESTAT vide final order A/636-640/WZB/2006/CSTB/CI dated 17.07.2006, remanded the matter, back to adjudicating authority, while observing that the confiscation order arrived at alongwith valuation is required to be set aside; whether ATA Carnet imports fell foul of import regulation are not is to be re-determined; since valuation has not been arrived as per the provision of law and the question of liability to confiscation under Section 111(d) of Customs Act 1962 would depend on such determination for ATA Carnet goods and question of penalty under Section 114A/112A needs to be re-considered in the light of facts of payment made by the Appellants and the duty demands requantified. In de novo proceedings Learned Commissioner vide order CCP/ADJ/SR/99 dated 29.04.2009 confirmed customs duty of ₹ 11,25,480 on M/s. J. K. International alongwith interest and imposed penalties as shown against the appeals filed as below. Revenue filed an appeal on the grounds that the Adjudicating Authority did not impose penalty under Section 114A, of the Customs Act, 1962, though confirmed duty under proviso to Section 28ibid. Sl. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... world Pvt. Ltd; said goods were seized from the premises of M/s. Galaxy fun world Pvt Ltd; M/s J.K. International have neither imported the goods nor goods were seized from their premises; hence, proposal of recovery of duty and appropriation thereof of the amount of ₹ 13,63,242 paid during investigation is not legal and proper; as per Section 28 of the Customs Act,1962 duty can be demanded from importer or the agent or the employee of the importer; Appellant is neither an importer nor agent or employee of M/s. Billiard of Tulsa; even under Section 124 of the Customs Act, 1962, it is permissible to recover duty either from owner of goods or where such owner is not known then person in whose possession or custody such goods have been seized is liable to pay duty; Therefore, confirmation of duty on the Appellant is not sustainable in law. 3.1. He further submits that it is alleged that the Appellant have failed to produce any valid special import licence for debiting the value of the goods covered by two ATA Car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not be any reason for confiscation of goods and accordingly no penalty can be imposed upon Shri Jeetendra H. Shah. 5. Ms. Trupti Chavan, Assistant Commissioner, Authorised Representative, for the Revenue, reiterated the findings of OIO and submitted that the case of the department is strong and based on documents. Shri Jeetendra Shah, in his statement recorded during investigation, stated that he along with Shri Mukesh J. Shah and Shri R. D. Mehta had supervised the imports under ATA Carnet; all the imports were at the behest and directions of Shri Mukesh J. Shah and he acted as per directions of Shri Mukesh J. Shah; Billiards of Tulsa sold all the machines to M/s. J. K. International, which were subsequently sold to M/s. Galaxy Fun world Pvt. Ltd. It is pertinent to note that the statement was not retracted and therefore, has evidentiary value. M/s. J.K. International have deposited the duty during the investigation and as such are deemed to have claimed themselves to be importers. Therefore there is no infirmity in demanding duty at against them. She also reiterated grounds of appeal in respect of the appeal filed by the department. 6. Heard both s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is that in the de novo proceedings Learned Commissioner has not followed the principals of valuation properly. Coming to the first question we find that the Appellants have raised this issue for the first time. This issue was not submitted to the adjudicating authority in the original proceedings as well as de novo proceedings. However, the Learned Counsel for the Appellants argues that this being a question of law can be raised at this juncture. We find that there is merit in his submission in this regard. We find that as discussed above, the main allegation of the department in respect of these two ATA Carnets is that they are obtained by M/s. Billiards Tulsa Inc USA. As stated above the Show Cause Notice acknowledges the fact in para 2 of the Show Cause Notice wherein it was stated that M/s. Billiards Tulsa Inc. USA had participated in two exhibitions at Delhi and Mumbai in 1997-98 and 1998-99 and displayed various machines imported by them under international ATA Cornet. However, after completion of the exhibitions, instead of re-exporting the amusement machines, they diverted the same for home consumption and sold the same to M/s. J. K. International Mumbai without discharg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e filed. ii) The FICCI shall be the sole guaranteeing association for ATA Carnet in India. iii) The validity of ATA Carnet shall not in any case exceed one year from the date of issue and iv) The temporary importation of goods under the Convention has been exempted from ITC Regulations under the saving clause of the Import Trade Control Order, 1955. It is also pertinent to note that the Government of India has vide notification no.14/1990 notified the ATA Carnet (Form of B/E and Shipping Bill) Regulations, 1990. 6.2 We fail to understand as to how Commissioner, having given such elaborate finding on the provisions of Law, proceeded to confirm the duty on M/s JK International. As argued by Learned Authorised Representative, the Revenue has presumed M/s J.K. International to be the importers as they have come forward and paid the duty and as per the statement of Shri Jeetendra H. Shah. We find that neither the Show Cause Notice nor the initial OIO/the de novo OIO have given reasoning as to why M/s JK International were treated to be importers. While the Show Cause Notice asked M/s Galaxy Fun World to show cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the imports were at the behest and directions of Shri Mukesh J. Shah and he acted as per directions of Shri Mukesh J. Shah; Billiards of Tulsa sold all the machines to M/s. J. K. International, which were subsequently sold to M/s. Galaxy Fun world Pvt. Ltd. It is pertinent to note that the statement was not retracted and therefore, has evidentiary value. We find that both M/s J.K. International and Shri Jeetendra H Shah have rendered themselves liable for penalty under Section 112 of the Customs, Act, 1962. The Learned Counsel for the appellants submitted that penalty cannot be imposed on M/s Galaxy Fun world and Shri Jeetendra H Shah its proprietor. As we are looking in to the acts of commissions and omissions of M/s JK International, we find that there is no infirmity in demanding penalty from M/s J.K. International of which Shri Jeetendra H. Shah is a director. However, looking in to fact that the case is very old and mired in litigation and the circumstances of the case we are inclined to reduce the penalties. However, as we hold that duty cannot be recovered from M/s J. K. International under the provisions of Section 28 of Customs Act, 1962, consequentially question of pena ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
