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TMI Blog2021 (11) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... implicated for such mistake by imposing penalty. Moreover, the penalty imposed under Section 114AA is attracted only when there is deliberate falsification of documents in order to get undue benefit. Appeal allowed - decided in favor of appellant. - Customs Appeal No. 41219 of 2013 - Final Order No. 42437/2021 - Dated:- 22-11-2021 - Hon ble Ms. Sulekha Beevi C.S., Member (Judicial) Shri Gokulraj L., Advocate For the Appellant Shri Vikas Jhajharia, Assistant Commissioner (Authorized Representative) For the Respondent ORDER The appellant is aggrieved by the penalty of ₹ 1,71,000/- imposed under Section 114AA of Customs Act, 1962. 2. Brief facts of the case are that appellant filed Bill of Entry dated 15.11.2011 for clearances of the imported goods namely 500 kgs. of Carbide Tips under Invoice No. TX 11102101 dated 21.10.2011 for a total value of USD 23750 FOB. On the basis of assessable value declared, the duty payable was ₹ 3,26,215/-. The goods were classified under CTH 28499090. Thereafter, on 28.11.2011, the appellant made a request for amendment of the whole invoice itself including the change with regard to name of the supplier, unit p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med the appellant that higher amount of duty has to be paid and the total value shown in the invoice is USD 23750, the appellant came to realize the mistake. So, the appellant requested for amendment of the details in the invoice since goods described in the invoice were the same. The appellant at that time was not able to get clarification and necessary documents from the foreign supplier. He pointed out that though the appellant had placed the order on GY, China, the invoices filed along with Bill of Entry seemed to have been issued by M/s.Tianxin Industrial Corporation Cemented Carbide Tools Ltd. (hereinafter to referred to as TI). However, the consignee name was shown as the appellant-company (V.R. Tools). The quantity of the goods, description of the goods was also the same. However, the unit price was different. The total price shown was USD 23750. The appellant came to understand that a wrong invoice for higher value was sent by the sister concern of GY Group and the CHA had filed these documents along with the Bill of Entry after obtaining such documents from the shipping liner. 3. Later, on enquiries made with the supplier, it was confirmed vide their letter dated 29.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted for amendment of their invoice. Only later, the appellant came to understand that the shipment was not as per the order placed by the appellant with the foreign supplier. 7. Ld. Counsel submitted that appellant has suffered a great deal. The goods for which the Bill of Entry was filed on 15.11.2011 have still not been permitted to be exported. Had the department allowed the said request for re-export, the appellant would have received the goods ordered by them. The appellant has suffered much financial hardship and mental agony. In such circumstances, the allegation against the appellant does not warrant imposition of penalty under Section 114AA of the Act. To support his contention, he relied upon the decision of the Tribunal in the case of Commissioner of Customs, Sea, Chennai-II Vs Sri Krishna Sounds and Lightings - 2019 (370) ELT 594 (Tri.-Chennai). He prayed that the appeal may be allowed. 8. Ld. Authorized Representative Shri Vikas Jhajharia appeared on behalf of the Revenue and supported the findings in the impugned order. He adverted to para-6 of the OIO and submitted that the first invoice issued for an amount of USD 23750 is the actual invoice and appellant ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Bill of Entry is for an amount USD 23750 (FOB) dated 21.10.2011 and issued by the foreign supplier TI. The description of the goods in the said invoice is Carbide Tips YG-8.2 S1203-25. The quantity of goods is 500 kgs. However, the unit price is shown as FOB SHENZHEN as USD 47.50. The buyer name is shown as V.R. Tools (appellant herein). The invoice is issued by company TI, China. The contention of the appellant is that they had placed orders for goods with the company, GY, China. They have produced the proforma invoice dated 27.09.2011 issued by the Company, GY, China. It is also seen that the appellant has made foreign remittance of USD 7140 on 10.10.2011. The amount is shown to have been paid to the Company GY,China much before issuance of the commercial invoice dated 21.10.2011 for USD 23750 issued by Company TI, China. The Ld. A.R has strenuously argued that appellant has attempted to undervalue the goods by requesting for amendment of the invoice as to the amount stated in the invoice in order to evade Customs duty. The said argument does not impress me for the main reason that appellant has not requested for mere amendment of the amount in the invoice but also the amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised by the Ld. A.R is that on verification of the website, the company GY is not engaged in manufacture of the said products and that the company TI is not the sister concern of the company GY. Apart from the observations made in the impugned order, there is no evidence to support these findings. The letter issued by foreign supplier GY, China states that TI, China is their sister concern and there is no mistake in the invoice. Though the department alleges that invoice for USD 23750 is the original invoice and the invoice for USD 7140 is a fabricated invoice in order to undervalue the goods, it is not understood why the appellant should adopt the procedure under Section 149 to request for amendment if he intended to evade duty. Such request to the department would always put the documents to scrutiny. Would anyone take such risk if he intends to evade duty? The Ld.AR submitted that the appellant can thereafter remit the balance amount to the foreign supplier. There is no previous incidence put forth by the department to prove that the appellant has been indulging in such practice of requesting for amendment of invoice to a lower value and thereafter remitting the balance amount t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... j Kumar Nair, Marketing Staff of CHA, it is seen that he filed Bill of Entry on the basis of documents collected from the shipping liner and not from the appellant (importer). Had the CHA collected documents from the importer also before filing Bill of Entry, he would have come to know about the mismatch and would not have filed Bill of Entry in such manner. As per the Customs Broker Regulations, the CHA has to obtain documents from the importer before filing the Bill of Entry. The shipping liner receives goods from various suppliers. The goods imported as per the invoice for an amount of USD 23750 which was wrongly sent by TI, China to the appellant, contained invoice, packing list and necessary documents to file the Bill of Entry. The CHA has filed Bill of Entry on the basis of these documents without obtaining from the importer s copy. Only when the CHA informed the appellant to pay duty, did they realize there is some mistake with regard to invoice. Further as already stated, the Bill of Entry was filed on 15.11.2011 and appellant had requested for amendment on 29.11.2011. The immediateness of the appellant in requesting for amendment on realising the difference in the invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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