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TMI Blog2019 (8) TMI 1343X X X X Extracts X X X X X X X X Extracts X X X X ..... ve sets of standard transition as against one set declared in the Bill of Entry. During investigation, the statement of the proprietor of appellant alongwith that of all concerned including the CHA, M/s. Milap Logistics Pvt. Ltd. were recorded and the documents were collected from the airlines/carriers/banks, etc. On the basis thereof, the Department alleged under valuation as well as mis-declaration of the consignment under Bill of Entry No. 9454459 dated 04.06.2015. Resultantly, a show cause notice No. 92/2015 dated 20.08.2015 was served upon the appellant proposing the demand and recovery of differential customs duty amounting to Rs. 1,64,50,604/- alongwith the interest. The amount of Rs. 75Lakhs as already deposited by the appellant was proposed to be appropriated. The imposition of penalty under Section 114A and 114AA was also proposed. The said show cause notice was adjudicated vide the Order-in-Original No. 16/2017-18 dated 30.03.2018 confirming the aforesaid proposal with imposition of same amount of penalty as that of the aforesaid demand under both the Sections respectively. Being aggrieved, the appellant is before this Tribunal. 2. We have heard Shri Somesh Arora, Advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o double jeopardy. With these submissions, the Order under challenge is prayed to be set aside and Appeal is prayed to be allowed. 4. While rebutting these arguments, learned Departmental Representative has submitted that it s not only the impugned Bill of Entry No. 9454459 dated 04.06.2015 but there has been as many as 190 Bill of Entries with respect to the prior imports by the appellant, as have been checked by the Department. In almost 98 cases, thereof the changes in invoices have been noticed. The noticed forgery has duly been acknowledged by the Proprietor of the appellant. His admission stands corroborated from the other respective documents as that of airways and even those as were received from banks. The appellant was intentionally under-valuing and mis-declaring his goods with the sole intention to evade the payment of Customs duty. The Department has committed no error while invoking the extended period of limitation. The observed guilt of the appellant stands well proved from the documents on record. Adjudicating Authority has committed no error while confirming the demand. 4.1 It is further submitted that scope of both the Sections i.e. 114A and 114AA of the Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther of the appellant attended the same that any reminder for continued abeyance for calculation of interest was ever given to the Department. There is nothing on record to show as to why the interest could not have been calculated and deposited in full by the appellant. Also, there is nothing on record to show that the notices as issued post 07.10.2016 were given to the appellant at the wrong addresses. In the given circumstances, especially when the appellant had knowledge of pendency of proceedings before the adjudicating authority and had appeared once through his father but instead of submitting on merits had prayed abeyance of adjudication in view of the desire to appear before the Settlement Commission it was utmost required on the part of appellant to be diligent about the impugned adjudication. Absence of requisite due diligence on the part of the appellant cannot be a ground to extend any benefit in his favour. The ground of medical sickness of the Proprietor of appellant is already opined not relevant as the appellant had already marked his presence through the father of the Proprietor thereof. With these observations, we are of the firm opinion that neither the Order un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoices showing the actual and higher value with the invoices showing lesser value and have thus repeatedly evaded the actual customs duty payable thereon. It is further observed that during the investigation the meticulous exercise with respect to comparing prior 192 Bills of Entry viz.-a-viz. the value reflected in the copy of 192 invoices, bills obtained from carrier/airlines and the bank statements of the appellant was done. The Department summarised that the appellant has resorted to similar replacement in as good as 130 cases thereof. Those were summarised in Annexure A to the show cause notice reflecting the short payment of customs duty amounting to Rs. 1,23,05,963/- during the period w.e.f. August, 2010 to June, 2015. In 17 other cases for the period July and August, 2015 the differential customs duty has been observed as Rs. 41,44,641/- where after the impugned demand of Rs. 1,64,50,604/- being an evasion of customs duty has been proposed and has been confirmed vide the Order under challenge. 9. There is nothing on record produced by the appellant to contradict the said documents based whereupon the differential duty has been calculated and confirmed by the Department. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 28 of the Act and the interest payable thereon under Section 28AA of the Act has not been paid by the importer. Whereas, Section 114AA prescribes penalty for the use of false and incorrect material. No doubt, in case of use of false and incorrect material there would also be the short paid duty or interest but all cases of short paid duty or interest may not be the cases of use of false and incorrect material. Hence, the scope of both the Sections is out rightly distinct. We find no infirmity in the Order where, in the given facts and circumstances of admitted forgery duly corroborated by the documentary evidence, penalty under both the Sections have been imposed. The case law as relied upon by the appellant is not applicable to the facts because in the present case there is sufficient evidence about use of false and incorrect material. 12. The non calculation of interest (as alleged), if any, on the part of the adjudicating authority is also not relevant for extending any benefit to the appellant, in view of the fact that appellant out of his own volition has deposited the entire differential customs duty and even the part interest thereof that too beyond the period of 30 d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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