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TMI Blog2009 (2) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... GMENT Dr. ARIJIT PASAYAT, J. 1. Challenge in these appeals is to the judgment of Customs, Excise and Service Tax Appellate Tribunal, South Zone, Bangalore (in short the 'CESTAT'). The orders in original passed by the Commissioner of Customs, Bangalore and Commissioner of Customs, Chennai were affirmed subject to certain modifications. 2. Seven appeals were filed against the Order-in-Original No.27/2004 dated 27.7.2004 by Commissioner of Customs, Bangalore and Order-in- Original No.2724/2004 dated 30.9.2004 passed by the Commissioner of Customs, Chennai. The details of the orders challenged before the CESTAT and the quantum involved are as follows: Appeal No. Appellant Differential Duty Redemption Fine Penalty C/428/04 M/s Carpen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny decided to import their requirements of kitchens from Veneta Cucine of Italy who are reputed manufacturers. Shri Karumbaiah and Thomas Mathew hatched a conspiracy to undervalue their imports for increasing their profits in the local market. For this purpose, they had prepared the invoices of the foreign supplier and sent them to Italy. Thomas Mathew floated a front company in the name of Proma SRL, the manipulated invoices were raised in the name of the above front company. These invoices were filed by the appellant before the Customs officials for assessment. They made their first import in the year 1995 through ICD, Bangalore. The foreign suppliers invoice and packing list had been signed by Shri Thomas Mathew on behalf of M/s. Proma S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mers. Thus, CCEPL substantially under-valued their import consignments in order to evade payment of customs duty. Similar modus operandi was adopted to import goods through Chennai Port also. On the basis of investigation, show cause notices were issued to the noticees. After observing the principles of natural justice, the adjudicating authorities at Bangalore and Chennai passed orders which were assailed before CESTAT. Various stands were taken before the CESTAT. The CESTAT noted the fact that the Commissioner has observed that Ravi Karumbaiah has admitted that Proma SRL was a front company set up in order to get the documents in the name of the said company and to evade payment of customs duties. The appellants submitted that from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at with the help of Thomas Mathew invoices were issued by Proma SRL using it as a front. The actual suppliers of the imported equipment were M/s Veneta Cucine and other foreign companies. Investigations established that value of the imported goods as per Veneta Cucine was different from those in the invoices of Proma SRL. The difference between the two values was settled by Thomas Mathew who collected differential sale amount during his visit to India and later settled the same with Veneta Cucine. This probably was the modus operandi. The revenue relied upon the following documents: Photocopy of a Fax dated 214.1997, said to have been sent by Thomas Mathew bearing No.VC/CC/9708 dated 21.4.97 addressed to Anchise Ballestrieri and Vittorio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that since reduction in the quantum is permissible, discretion is given in the matter of imposition of penalty. 5. Learned counsel for the respondents on the other hand supported the judgment. 6. Section 112(a) and Section 114A read as follows: "112(a) Penalty for improper importation of goods, etc. - Any person, - (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act, or 114A-" Penalty for short-levy or non-levy of duty in certain cases. - Where the duty has not been levied or has been short-levied or the interest has not been charged or paid or has [xxx] been part paid or the duty or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case may be, the court, then, the benefit of reduced penalty under the first proviso shall be available if the amount of the duty or the interest so increased, along with the interest payable thereon under section 28AB, and twenty-five per cent of the consequential increase in penalty have also been paid within thirty days of the communication of the order by which such increase in the duty or interest takes effect : Provided also that where any penalty has been levied under this section, no penalty shall be levied under section 112 or section 114. Explanation. - For the removal of doubts, it is hereby declared that -(i) the provisions of this section shall also apply to cases in which the order determining the duty or interest under su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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