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TMI Blog2022 (4) TMI 948X X X X Extracts X X X X X X X X Extracts X X X X ..... that these were sourced at auctions, by the adjudicating authority. The initiation of proceedings for confiscation under section 111(m) of Customs Act, 1962 and penalties under section 112 and section 114AA of Customs Act, 1962 must be viewed through that prism. Clearance of goods for home consumption, in exercise of authority under section 47 of Customs Act, 1962 and subject to satisfaction of proper officer that the goods are not prohibited and that the correct duties have been levied, attains a finality thereby that can be disturbed only upon subsequent finding that the goods are prohibited or that short-payment of duty has occurred with the latter to be re-opened only within the stipulated time-frame. There is no allegation of the goods being prohibited and, indeed, recourse to confiscation under section 111(m) of Customs Act, 1962 repudiates that contingency. The discharge of correct duty liability is a determination of rate of duty, under section 12 of Customs Act, 1962, and value determined in the manner prescribed in section 14 of Customs Act, 1962 - it would appear that confiscation is disproportionate detriment and without any justification to cause such detriment. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im Jaria, Director of M/s Crown Lifters Pvt Ltd, impugning the confiscation of imported cranes , recovery of differential duty thereon and imposition of penalties under section 112 and under section 114AA of Customs Act, 1962, bring the dispute initiated by show cause notice dated 10th September 2012 before the Tribunal for the second time with re-adjudication, that was ordered on the former occasion, not altering the culmination thereof except to the extent of reducing the penalties imposed on the importers and the individual. The proceedings pertain to nine used cranes of varying specifications imported between 11th February 2005 and 12th February 2007 by M/s Crown Lifters, a partnership that was dissolved in 2007, and five consignments of used cranes imported by M/s Crown Lifters Pvt Ltd, of which Shri Karim Jaria was the Managing Director, between 23rd January 2008 and 23 rd February 2010. During the investigations, ₹ 1,50,00,000 had been voluntarily deposited towards differential duty on which turns one of the principal claims in the appeal along with dispute on valuation arising from re-determination of assessable value by recourse to rule 3 of Customs Valuation ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs [2009 (244) ELT 4 (SC)] was cited. Curiously, in both the orders impugned then and now, the payment of ₹ 1,50,00,000 made during the investigations and its adjustment towards the duty liability on imports of M/s Crown Lifters are merely narrated in much the same way as the impugned show cause notice did and, in response to the claim of the noticee that the demand pertaining to the nine consignments stretched beyond the extended period permitted in section 28 of Customs Act, 1962, the adjudicating authority observed that 53. During the proceeding, the noticees no. 1, 2 3 has submitted that the Show Cause Notice issued on 10.09.2012 is time barred in relation to the 9 consignments imported by M/s Crown Lifters as the same was issued beyond the period of limitation of 5 years and therefore the proposal to adjust the amount towards duty in respect of such consignments is illegal. It is also submitted that the present proceeding may be limited only to the 5 cranes imported by M/s Crown Lifters Pvt Ltd. I find that in Para 14(xi) of the show cause notice it is mentioned that the amount voluntarily deposited by notice no. 3 during the course of investigation is adjus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y order and cheque Were immediately submitted by noticee no. 3 on the next day of the statement dated 19. 11. 2010 in which he confessed the undervaluation of the cranes and import. Pay orders of the total amount were submitted over the period of 7 months from 20. 11. 2010. He had ample time at this disposal to protest over coercion/persuasion, if any, by DRI for the said payment but he did not. He had given his next statement on 19.0 7.2012 almost after one and half years. He neither during that intervened period nor during the statement dated 19.0 7.2012 has murmured any single word about the alleged coercion for payment. before going on to conclude, on the basis of circumstances therein, that the said deposit was not limited to imports effected during the period of limitation permitted by section 28 of Customs Act, 1962. The Tribunal, in the face of contention of the appellant, had directed that 7. But in the present case the deposit actually arises on persuasion. In fact the appellant has alleged coercion. In fact we agree with the reliance on the case of Photokina (supra). This judgement relied on the Honourable Court of Madras decision in the case of Pilmen Age ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity is a determination of rate of duty, under section 12 of Customs Act, 1962, and value determined in the manner prescribed in section 14 of Customs Act, 1962. The first is not in dispute as far as the impugned goods are concerned and the show cause notice has not proposed recovery of duties of customs on goods imported by M/s Crown Lifters; valuation, under the authority of section 14 of Customs Act, 1962, is limited to assessment. In the glaring absence of proposal in the present proceedings for levy of differential duty, recourse to valuation merely for the purpose of resorting to confiscation is to transform it from penal consequence to cause of action. Hence, it would appear that confiscation is disproportionate detriment and without any justification to cause such detriment. Consequently, confiscation of nine used cranes imported by M/s Crown Lifters fails along with the penalties arising therefrom. 8. However, as recovery of differential duty has been proposed for the subsequent imports, M/s Crown Lifters Pvt Ltd is not immune to consequence of evasion of duty liability in the event of undervaluation being established. The sole evidence of misdeclaration of value appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 10. The remand order is unambiguous in placing the onus on the adjudicating authority to justify denial of any request for cross-examination. The adjudicating authority appears to have turned this decision on its head with his observation that 49. During the hearing proceedings, the noticee no. 1, 2 3 submitted for the cross examination of noticee no. 4, Shri Brijesh Gala and Sr. Intelligence Officer of DRI (name not mentioned) and noticee no. 4 has made submissions for the cross examination of noticee no. 3, Shri Vikram Janghiani, partner in M/s Dharamdas Co (CHA 11/100) and the assessing officers. 49.1 I have examined the submissions of noticees no. 1, 2 3 for the cross examination. The said submissions are tendered without specifying any grounds/reasons under which the cross examination of the persons as requested by them would be helpful to prove their innocence. before going on to reject all the requests. 11. It was after going through the re-determination of value, the confiscation and the imposition of penalty that the Tribunal found it fit to reject all the conclusions in the order impugned therein for want of credibility of the statements reli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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