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TMI Blog2024 (4) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court, the CHA who filed the Bills of Entry and the bank which opened an account in the name of his firm and remitted large sums abroad on account of his firm. No evidence has been put forth to support such wild claims by Umesh Kumar. These arguments which form the grounds of Customs Appeal no. 51578 of 2018 filed by Umesh Kumar cannot be sustained and accordingly, the appeal deserves to be dismissed. Penalty on Rajat Arora - Appeal was dismissed for non-prosecution - HELD THAT:- This appeal which was initially dismissed for non-prosecution was restored on an application by the appellant. Thereafter, it was listed on 36 occasions over a period of five years and five months. While some adjournments were on account of other exigencies, the main reason for the adjournments were the requests of the appellant either in writing or in person or through proxy counsel. On 24 August 2023, on the request of the counsel, the matter was adjourned to 12 October 2023 as a last opportunity. Even on this 36th listing of the appeal, none appeared for the appellant. Needless to say that 36 adjournments is more than a reasonable opportunity of being heard given to the appellant. It is found f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submission dated 31.10.2023 was sent by the learned counsel for Rajat Arora, which was received on 31.10.2023. The factual matrix which leads to these appeals is as follows: 2. On 18.9.2014, a Bill of Entry No. 6807339 was filed with M/s. Aromatech as the importer. On examination, the goods were found to be in excess of the declaration in the Bill of Entry and there were also goods which were not declared at all in the Bill of Entry. Certain essential details such as the details of the importer, the exporter and the maximum retail price [MRP] were also missing on the cartons. 3. Further investigation also showed that 15 Bills of Entry had been filed prior to this Bill of Entry by M/s. Aromatech and in all these cases, the appellant had availed the benefit of Customs exemption notification no. 12/2012 dated 17.3.2012 without following the conditions of the notification. After recording statements and completing the investigation, a Show Cause Notice [SCN] dated 05.03.2015 was served on Umesh Kumar and Rajat Arora proposing recovery of differential duty under section 28(1) for the imports made in all the Bills of Entry along with interest and proposing to impose penalties on Umesh K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but similar goods, if imported and used do not suffer VAT. However, if the imported goods are not used by the importer but are further sold, such goods will suffer VAT and hence SAD is exempted or refunded. For the goods imported through these Bills of Entry during the relevant period, exemption notification no. 12/2012 was available which exempted the goods from payment of SAD subject to the condition that the importer declares the state of destination where the goods are to be sold after import and his VAT registration number. The importer declared the State as UP and provided its VAT registration number. However, from the VAT returns filed with the UP Government authorities, it was evident that the importer had not paid any VAT at all. Thus, the importer had evaded paying SAD declaring that the goods will be sold in UP but did not pay VAT in UP. 9. Repeated summons were sent to M/s. Aromatech but it did not respond. Even Rajat Arora also did not respond to the summons dated 31.12.2014 and 13.1.2015. 10. M/s. Aromatech, filed a Writ Petition in the Delhi High Court on 9.1.2015 seeking provisional release of the seized goods and the High Court directed Umesh Kumar, the proprietor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 28AA of Act, ibid by invoking extended period of 5 years under section 28(4) of the Customs Act, 1962. (vi) Imposed penalty of Rs.61,65,224/- (Rupees sixty one lakh sixty five thousand two hundred and twenty four only) under section 114A of the Customs Act, 1962 on M/s Aromatech for the duty short paid by reason of collusion/wilful mis- statement/suppression of facts for their various acts of omission and commission as detailed above. (vii) Imposed penalty of Rs. 10,00,000/- (Rupees ten lakhs only) on Rajat Arora under section 112(a) of the Customs Act, 1962. 13. On appeal by M/s Aromatech, this Tribunal passed Final Order dated 9.5.2017 remanding the matter to the original authority with a direction to provide relied upon documents to him. The appeal by Rajat Arora challenging the penalty of Rs. 10,00,000/- imposed on him was initially dismissed and later restored. 14. Pursuant to the Final Order, the impugned denovo OIO was passed by the Principal Commissioner. It deals with only the part of the order insofar as M/s. Aromatech and its proprietor Umesh Kumar were concerned. The operative part of this order is as follows: (i) I reject the declared assessable value of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese proceedings. 15. The prayer of Umesh Kumar before us in this appeal is to set aside the impugned denovo OIO dated 4.1.2018. The main contention of Umesh Kumar is that he had only lent his IEC to Rajat Arora and was in no way concerned with the imports at all and therefore, the impugned order needs to be set aside. The specific grounds listed in the appeal are: (a) The impugned order is bad in law, unjust and unfair. (b) Rajat Arora was the real importer and he (Umesh Kumar) had sought his cross examination which was allowed on 5.12.2017 and 15.12.2017 but Umesh Kumar had not appeared. Next time on 29.12.2017, the Rajat Arora s advocate had not appeared. The impugned order was passed without offering any further cross examination and hence should be set aside; (c) He neither imported the goods nor signed any of the Bills of Entry as can be verified from the records; (d) He had not even filed the Writ Petition before the Delhi High Court and was also unaware of the order passed by the High Court but on being informed by Rajat Arora, he had appeared before the Customs officer on 4.2.2015. (e) He had also given his bank details to Rajat Arora who has been operating it and he was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of Umesh Kumar in this appeal before us is that he is in no way concerned with the imports or the Writ Petition or the Bills of Entry. Insofar as appearing before the Customs Officer on 4.2.2105 is concerned, he says that he was told by Rajat Arora that there was an order of High Court and he had to appear and therefore, he did. 24. We find no force in these submissions. If these submissions have to be accepted, it would mean that: a) The Oath Commissioner who had attested his affidavit filed before the High Court had falsely verified the signature although it was not made before him by Umesh Kumar; b) M/s. Gandhi and Associates, the law firm, without even being hired by Umesh Kumar, somehow learnt about his case and filed a Writ Petition before the High Court; c) Mr. Gandhi, Mr. Ritesh Chaudhary and Mr. Mayank Singh, learned advocates, without being engaged by Umesh Kumar, had appeared before the High Court and made submissions including a statement that his authorised representative will appear before the Superintendent of Customs on 4.2.2015 at 11 AM; d) Umesh Kumar, without knowing anything about the case or the proceedings in the Writ Petition, appeared before the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned to 9.7.2018. 4 9.7.2018 Learned DR was directed to obtain a copy of the re-adjudication order and also provide a copy to Shri Rajat Arora or his counsel. Adjourned to 30.7.2018. 5 30.7.2018 Directed to tag this appeal with the appeal no. C/51578/2018 filed by Shri Umesh Kumar after re-adjudication and list on 21.8.2018. 6 21.8.2018 Learned counsel for the appellant sought an adjournment. Adjourned to 27.9.2018. 7 27.9.2018 Adjourned to 10.10.2018. 8 10.10.2018 Adjourned to 17.10.2018 Top of the Board. 9 23.5.2019 Listed. Learned counsel sought an adjournment. Adjourned to 2.7.2019. 10 2.7.2019 Listed. Learned counsel sought an adjournment. Adjourned to 13.7.2019. 11 13.8.2019 Listed. Learned counsel sought an adjournment. Adjourned to 22.8.2019. 12 22.8.2019 Listed. Learned counsel sought an adjournment. Adjourned to 24.9.2019. 13 24.9.2019 Listed. Learned counsel sought an adjournment. Adjourned to 5.11.2019. 14 5.11.2019 Listed. Learned counsel sought an adjournment. Adjourned to 18.12.2019. 15 18.12.2019 Adjourned to 6.2.2020 16 6.2.2020 The matter could not be taken up. Adjourned to 23.3.2020. 17 1.3.2021 None appeared for the appellant but a written request for adjournment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Relevant portion of this judgment is as follows: 13. Applying the principles laid down in the aforesaid case to the facts of the present case, as the two provisions are similar, we are of the considered opinion that the Tribunal could not have dismissed the appeal filed by the appellant for want of prosecution and it ought to have decided the appeal on merits even if the appellant or its counsel was not present when the appeal was taken up for hearing. The High Court also erred in law in upholding the order of the Tribunal. 29. This matter was listed on 12.10.2023 and the submissions of the learned authorised representative for the Revenue were heard and the records were examined and the order was reserved. Thereafter, on 30.12.2023, learned counsel for the appellant submitted an application seeking an opportunity to address on final arguments. It is stated that although the matter was listed on 12.10.2023, learned counsel noted it as 30.10.2023 instead and therefore, the matter may be listed and the matter may be heard. We find that not only was the date pronounced in the open court but the order sheet fixing the date of hearing on 12.10.2023 was also uploaded on the website as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the imposition of penalty on Rajat Arora under section 112(a). 35. The first submission of Rajat Arora is that he had nothing to do with the business of M/s. Aromatech and that he was merely a freight forwarder and that he had received the documents from the proprietor of M/s. Aromatech (Umesh Kumar) and submitted them for customs clearance. 36. We find from the records, when the goods were examined by the Customs and discrepancies were found, they were seized under a panchnama under section 110 in the presence of Deepak, G card holder of CHA M/s. Venstar Shipping Services and two independent witnesses. Quite logically, summons were issued to the proprietor of M/s. Aromatech and to the CHA for appearance on 29.9.2014. 37. In response to the summons to the proprietor of M/s. Aromatech, Rajat Arora appeared on 1.10.2014, before the Customs officer with an authorization from the proprietor, introduced himself as Sales Incharge of M/s Aromatech, and gave his statement. It is to be noted that the summons were not issued to Rajat Arora but to M/s. Aromatech but Rajat Arora representing himself as the sales incharge gave a statement. Therefore, the submission in this appeal that Rajat Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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