9911796707
TMI Blog2023 (8) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... and the differential amount has also been paid to the overseas suppliers through their office in India by illicit means - Shri Rakesh Magoo and Shri John Miranda were actively involved in import of the impugned goods and undervalued the same. Therefore, penalties imposed on the said Shri Rakesh Magoo and Shri John Miranda, are confirmed. Penalty imposed on M/s Sai Dutta Clearing Agency Private Limited - HELD THAT:- They are also involved in the illegal imports by undervaluation of imported goods as it was in their knowledge that Shri Rakesh Magoo and Shri John Miranda, imported the goods in the name of IEC holder using IEC code for their illegal import. Accordingly, penalty imposed on M/s Sai Dutta Clearing Agency Private Limited, is also confirmed. Thus, no duty is payable on Shri Rakesh Magoo and Shri John Miranda, but penalties imposed on Shri Rakesh Magoo and Shri John Miranda and M/s Sai Dutta Clearing Agency Private Limited , are confirmed - appeal disposed off. - Customs Appeal Nos.75240 to 75244/2014 - FINAL ORDER NO. 76170-76174/2023 - Dated:- 26-7-2023 - MR. ASHOK JINDAL, MEMBER (JUDICIAL) AND MR. K. ANPAZHAKAN, MEMBER (TECHNICAL) Dr. Samir Chakraborty, S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 108 of the Customs Act 1962 on 26.07.2008 wherein he stated inter alia that, he was engaged in the business of trading of Electronics for the preceeding 15 years and had started his firm- M/s A.S Enterprises which was initially engaged in trading and importing of electronic components for past 5 years; that, since, last 2 years, he had been importing Car Audio Speakers in the name of M/s A.S Enterprises and the said firm was engaged in trading import of Car Audio Speakers only; that, he agreed with proceedings of Panchnama drawn by officers of DRI, New Delhi on 26.07.2008 under which documents relating to imports trading done by the said firm and a Computer Hard Disk was recovered during search conducted at M/s A.S Enterprises; that ,they had also imported Car speakers through others firms i.e. M/s Balaji Enterprises and M/s J.N.S Enterprises, Delhi; that, Shri John Miranda of Bombay was his business friend / partner and Shri John Miranda was known to him for the preceeding 15 years; that, they interchanged their imported goods as per requirement of their buyers and the accounts of those transactions were settled by them by payment in cash; that, he had imported Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g charges and transporting charges; that, they had been using various other import Export Codes (IECs) of various other fictitious firms to hide their identity as actual importer / beneficiary; that, they were using the Import Export codes of various firms including the following firms for effecting the import and trading of car audio items. Sr. No. Name of importer IEC No 1. A.S. Enterprises 0503074144 2. J.N.S. Enterprises 0505013085 3. K.S. Enterprises 0506071944 4. New Star Enterprises 0505051688 5. Surya Trading Co 0505003902 6. M.R. International 0508000793 2.4 That, it was factually correct that the actual IEC holders reflected in the bills of entry in all the cases had nothing to do with the imported goods; that, the details as to how the payment was made to IEC holders for retiring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C No 1. A.S. Enterprises 0503074144 2. J.N.S. Enterprises 0505013085 3. K.S. Enterprises 0506071944 4. New Star Enterprises 0505051688 5. Surya Trading Co 0505003902 6. M.R. International 0508000793 He undertook to furnish all the details substantiating their duty liability as well as the entire duty liability of Rs. 60 lakhs during his next visit on 28.07.2008. 2.7 A further statement of Shri John Miranda, Proprietor of M/s. Jojojem International was recorded under Section 108 of the Customs Act, 1962 on 28.07.2008 wherein he inter alia stated that, there were two live consignments of electronic goods imported by him i.e. one consignment of car audio system, speakers sub-woofers, etc. imported by him which was pending clearance in Kolkata port but he did not remember the declared value/actual value of the same; that, the approximate declared va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not normally verify the address of the business premises; that, after they get the documents from the clients they file the Customs documents like Shipping Bill or Bill of Entry as the case may be, and process the same through the concerned Custom House; that, they retain the documents even after the clearance from the Customs; that, their major clients of car speakers for whom they did the Customs clearing were Surya Trading Co, M.R. International, New Star Enterprises, KS. Enterprises, Balaji Enterprises, J.N.S. Enterprises, SSR Enterprises, A.S. Enterprises. 2.9 He was shown a letter dated 21.07.2008 of Shri Samunder Singh, post man of Shahadara Post Office, Delhi vide which the post man had confirmed that the address: 1974/3, Vishwas Nagar, Gali No. 15, Shahadara, Delhi-32, did not exist. He stated that the said nonexistent address belonged to M/s M.R. International. He admitted that they had not personally verified the address at any point of time because they knew that all these firms belonged to Shri Rakesh Magoo and Shri John Miranda and since they knew them well, they had not verified further. The signatures on the authorization letter received from the proprietor of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Enterprises, M/s. Fine Enterprises, were sent from the fax no.011-23521120 which belonged to Shri Subhash Langi; that, moreover, the directions regarding import, clearance, transportation etc. and payments for duty, other charges were received from Shri Subhash Langi, in respect of the above 8 firms (he submitted copies of the import documents for year 2007-08 and 2008-09 in respect of car audio / accessories imported by various firms of Shri Rakesh Magoo / John Miranda). Regarding the status of Bill of entry no. 420730 dated 17.07.2008 of M/s. M.R. International, he stated that the Bill of Entry had been assessed and duty payment was pending; that, while assessing the Bills of Entry, values declared in the invoices had been enhanced by the Group Appraiser; that, the assessable value in case of M/s M.R. International, after the enhancement was Rs. 29,03,578/- against the declared invoice value of Rs. 19,14,494/- (44317 X 43.2); that, the duty payable was assessed as Rs. 9,20,533/-; that, similarly, the assessable value in case of M/s. Venus Enterprises, after the enhancement was Rs. 23,32,185/- against the declared invoice value of Rs. 21,56,611/- (49,991 X 43.2)/ that, the duty pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was made to the IEC holders in cash; that, the local buyers of goods imported by him were Ankush Ji - Delhi, Tejpal Ji Delhi; that, Vineet ji Delhi, Anil Dawar Delhi, Rajneesh Delhi, Abhishek Delhi, Maninder Delhi, Harvinder Delhi, Manu Delhi, Sunil Delhi, Sonu Delhi; that, he did not know remember the name of the firms of those persons. 2.15 Shri Magoo was shown letter No. D/EE/2008/CF/108 dated 25/11/2008 of the Directorate of Forensic Science, Gandhinagar, under which print outs of data recovered from the hard disk withdrawn under Panchnama dated 26/07/2008 drawn at the premises of his office i.e. M/s A.S Enterprises, GH-9/638 Paschim Vihar, Delhi-87, had been forwarded. He perused the same and identified that the page No. 000002 to 000011 of said printouts pertained to account of imported goods sold to Shri Tejpal, Shri Vineet apd Shri Ankush. It also contained Item No., Qty(Quantity), Rate Amount; that, page No. 000015 to 000027 of said printouts pertained to account of imported goods sold to Shri Anil Dawar; that, it also contained Item No.,Qty(Quantity), Rate Amount; that, the page No. 000029 to 000052 of said printouts pertained to account of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 131 to 000151 of said printouts pertained to account of imported goods sold to Shri Abhishek Ji which also contained Item No., Qty(Quantity), Rate Amount; that, page No. 000153 to 000176 of said: printouts showed the details of Payments and Expenses; that, he was not able to explain the details of the same nor was he aware of the contents of the said document; that, he did not know how to operate a computer but it was possible that the said papers may have been prepared by a person named Shri Raju a part time computer operator employed by him in his office; that, page No. 000153 to 000176 of said printouts pertained to account of imported goods sold to Shri Sonu Ji and also contained Item No., Qty(Quantity), Rate Amount; that, page No. 000187 to 000203 of said printouts pertained to account of imported goods sold to Shri Maninder Ji. It also contained Item No., Qty(Quantity), Rate Amount; that, he had not imported any consignment of automobile parts till that date; that, the consignments which were lying at Mumbai Port in the name M/s K.S. Enterprises, Delhi and M/s S.S.R Enterprises, Delhi had not been imported by him; that, they got credit for a period of 90 to 120 days fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that, the imports were mainly from M/s. Rasco International, Hong Kong, M/s. Cosmo Trading Co., Hong Kong, M/s. Wing Tat, Hong Kong, M/s. Chee Lin Exports, Hong Kong of Shri Vijay Kumar, M/s. Farle Exports, Singapore of Ms. Belinda, M/s A.K. Pawa Brothers, Singapore of Shri Pawa, and M/s. Zajel Al khaleej General Trading Co., Dubai of Shri Sunil; that, these firms were all owned by persons of India Origin and he dealt directly with these persons for his imports; that, he was the sole proprietor of M/s. Venus International, having office at 305, 3rd floor, Madhuban Building, 23, Cochin Street, 323, S.B. Singh Road, Mumbai-400 001; that, however, M/s. Venus International did not have any IEC code and was in no way connected with import and export; that, he was shown letter No. D/EE/2008/CF/108 dtd. 25.11.2008 of Directorate of Forensic Science, Gandhinagar under which printouts of data contained in the hard disk seized from the office of M/s. A.S. Enterprises, New Delhi under panchnama dtd. 26/07/2008 had been forwarded; that, he was not aware of the contents of page No. 00002 to 000011 of the documents forwarded by DFS, Gandhinagar; that, he knew Shri Tejpal, and Shri Ankush who we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 sent to his firm M/s. Venus International, Mumbai; that, however, he was not aware of the said document; that, there was no activity of any kind in M/s. Venus International and neither did it have any bank account; that, Shri Rakesh Magoo was aware of the existence of his firm M/s. Venus International and he must have used his firm s name to transact locally or with overseas firms without his knowledge; that, page No. 000090 of the documents forwarded by DFS, Gandhinagar was a quotation of speakers, car radio, amplifiers of different make and model; that, except for the JBL make speakers and amplifiers mentioned in the said document the other goods had not been imported by him; that, the JBL make speakers and amplifiers were imported from the authorized agent of the company M/s. Zajel Al Khaleej General Trading Co (LLC), P.O. Box. 25542, Dubai, U.A.E and the goods were imported in the name of M/s. K.S. Enterprises, New Delhi; that, page No. 000094, 96 and 102 of the documents forwarded by DFS, Gandhinagar are invoices issued by M/s. Rasco International Limited, Hong Kong of Shri Vijay Kumar in the name of his firm M/s. Venus International Mumbai; that, however, he was not awar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi based purchasers of car speakers, amplifiers etc; that, he was not aware of the contents of page No. 000187 to 000203 of the documents forwarded by DFS, Gandhinagar; that, he did not know Shri Maninder Ji; that, he knew the above mentioned Delhi based buyers i.e. Shri Sunil, Shri Mani, Shri Sonu, Shri Anil Dawar, Shri Tejpal, Shri Ankush, Shri Harvinder and Shri Rajnish, however, he did not know the name of their firms; that, the goods imported by him were also sold in New Delhi and the sales and marketing were all looked after by Shri Rakesh Magoo and he did not have any part in the sales of the goods imported by him; that, what had been stated by him in his earlier statement dtd. 26.07.2008 was true and correct; that, there was substantial difference in the actual price of the goods imported and the price declared before the Customs at the time of import; that, the declared price was ranging between 30 to 40% of the actual transaction value and the undervaluation was to the extent of 50 to 60%; that, he had stated in his statement dated 26.07.2008 that the differential duty liability was approximately Rs. 50 lakhs on account of undervalued import in the name of various othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicated. Demand of duty was confirmed jointly from M/s Surya Trading Company, Rakesh Magoo and John Miranda and penalties on all the appellants, namely, Shri Rakesh Magoo, Shri John Miranda M/s Sai Dutta Clearing Agency Private Limited, were imposed. 2.22 Against the impugned order, Shri Rakesh Magoo, Shri John Miranda M/s Sai Dutta Clearing Agency Private Limited, are in appeal before us. Customs Appeal No.75240 of 2014 Customs Appeal No.75241 of 2014 3. In respect of Customs Appeal Nos.C/75240/2014 C/75241/2014, the statement of Shri Chander Mohan Sahni, Partner of M/s. Creative Enterprises, Chamber No. 209, Reshab Shree House, Ranjit Nagar Commercial Complex, West Patel Nagar, New Delhi was recorded before the officer of DRI, Delhi Zonal Unit under Section 108 of the Customs Act, 1962 on 03.07.2009 wherein he stated inter alia that he was the Partner of three firms M/s. Creative Enterprises, Chamber No. 209, Reshab Shree House, Ranjit Nagar Commercial Complex, West Patel Nagar, New Delhi-110008; M/s. Real Enterprises, 7/202, Shop No. 2, Ramesh Nagar, New Delhi, and M/s. New Star Enterprises, 129-A, First Floor, DDA Flats, Shivaji Encl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id not recollect the IEC number of their firms; that, as and when instructed by the late Shri Rajinder Batra, he also used to sign cheques, import documents, bank documents etc; that he was not aware of the details of the goods being imported in the name of their firms and using the IEC of their firms, however, he knew that car electronic goods were being imported; that, he was not aware of the rate/price of the car electronics being imported in the name of their firm; that, all these matters were handled by the late Shri Rajinder Batra on the instructions of Shri Rakesh Magoo and Shri John Miranda; that, he did not know anything about import/export procedures, Custom procedures for import export and he also did not know any overseas firm; that, the remittances to the overseas suppliers was made from the bank account of their firm i.e. M/s Creative Enterprises with Lord Kishna Bank, J-2/14, Rajouri Garden, New Delhi and that of M/s Real Enterprises with Syndicate Bank, Rajouri Garden, New Delhi and that of M/s New Enterprises with Syndicate Bank, Rajouri Garden, New Delhi; that, whenever remittance was to be made to the overseas suppliers, the funds were arranged and deposited in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.1 Shri Sahni also stated that he was in no way concerned with the goods imported under the above mentioned bills of entry and the goods were not his but belonged to Shri Rakesh Magoo and Shri John Miranda. 3.2 On the basis of the above investigation, it was alleged that M/s Creative Enterprise, Delhi with the connivance of Shri Rakesh Magoo Shri John Miranda, have imported car electronic goods and under valuation of their assessable value and the differential amount has been paid through illicit means. Therefore, show-cause notice was issued to demand differential duty along with interest and to impose penalty on the appellants. 3.3 The matter was adjudicated. The duty was demanded jointly from M/s Creative Enterprise, Shri Rakesh Magoo and Shri John Miranda. Penalties were also imposed on the appellants. 3.4 Against the said order, Shri Rakesh Magoo and Shri John Miranda are in appeal for demand of duty and for imposition of penalty jointly. 4. The ld.Sr.Advocate for the appellants, submits that the period involved in both the cases is March, 2007 to March, 2008 and the showcause notice has been issued on 1st March, 2012 27th March, 2012 respectivel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court in the case of CC (Exports) Vs. Sudarshan Cargo Pvt. Ltd. : 2010 (258) ELT 197 (Bom.). 4.3 With regard to valuation of the imported goods, he submitted that the similar charge is not sustainable being contrary to the manner of determination and the settled principles to be applied in this regard. He also submitted that the DFS print out relied upon does not comply with the provisions of Section 138C(4)(c) of the Act and therefore, cannot be admitted as evidence and no penalty can be imposed on the person, who has filed the Bill of Entry shown as limited interest in the clearance of the goods. To support, he relied on the decision of the Hon ble Kerala High Court in the case of Proprietor, Carmel Exports Imports Vs. Commissioner of Customs : 2012 (276) ELT 505 (Ker.). 4.4 He also submitted that no corroboration of material on record evidencing any amount has been paid in cash to the suppliers in the case pertaining to the importer. Therefore, he submitted that no penalty can be imposed. In that circumstances, penalties on the appellants are to be set aside. 5. On the other hand, the ld.A.R. for the Revenue, drew our attention to the various statements of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to contact custom house agent M/s. Sai Dutt Clearing Agency Pvt. Ltd. for clearance of the goods. Thereafter I used to book the said goods through the transporter M/s. Godhara Road Lines or by Rajdhani Courier to Delhi. Shri Rakesh Magoo used to make payments towards clearing charges and transporting charges. 8.3 On being asked whether it is true that one Shri Rakesh Magoo is your business partner in the import and trading of car audio items and having your office at Mumbai and address is 305, 3rd floor, Madhuban Building, 23, Cochin Street, 323, S.B. Singh Road, Mumbai-400 001, I am to state that it is true and correct statement that one Shri Rakesh Magoo is my business partner in the import and trading of car audio items and having your office at Mumbai and address is 305, 3rd floor, Madhuban Building, 23, Cochin Street, 323, S.B. Singh Road, Mumbai-400 001. 8.4 On being asked about M/s. M.R. International, I am to state that I confirm that the address of M.R. International at 1974/3, Viswas Nagar, Gali No. 15, Shahdara, Delhi is fictitious. The fictitious address of M.R. International used by us for the import of car audio items at grossly undervalued price. We have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partner Shri Rakesh Magoo. 8.10 On being asked about the details of the overseas suppliers the overseas persons with whom you used to interact for placing the order, I am to state that I used to place the order with Shri Vijay Kumar owner of M/s. Rasco International and M/s. Cosmo Trading Co. having Tel. No. + 85290203944 and another office No. + 8523126097, 085227118102, 08523126116 and Fax No. + 8523696760, Hong Kong, Shri Mr. Pawa of M/s. A.K. Pawa Brothers, Singapore having Tel. No. 06563388437, 06581237233, 006596375057, 006563364462, 006563388437, 06563361440 and 6597337320, Shri Sunil of M/s. Zajel Al Khaleej General Trading Co., Dubai having Tel. No. 097142283717. 8.11 On being asked about the details of the CHA engaged by you for the clearences of car audio items at different ports. How the payment was made to CHAs, I am to state that Shri Dham of M/s. Sai Dutt Clearing Agency Pvt. Ltd. is clearing our goods in Mumbai and Shri Dipak Dutt having Tel. No. 9830022568 in Kolkata, I do not remember the name of the firm. 8.12 On being asked about the details of the godowns / warehouses where the imported goods were stored and subsequently delivered to their buye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02. A.S. Enterprises 0503074144 03. Balaji Enterprises 0504081730 04. Balaji Trading 0305044203 05. Colon International 0505059948 06. Good Luck Impex 0204027306 07. H.A. Enterprises 0504050002 08. Impact System Inc 0295009231 09. J.N.S. Enterprises 0505013085 10. K.S. Enterprises 0506071944 11. MEPL Trade International 0306020912 12. New Star Enterprises 0505051688 13. Real Enterprises 0505057279 14. Royal Enterprises 0508004934 15. S S International 0503081647 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
