9911796707
TMI Blog2024 (12) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... is on record that Appellant already had filed application for amendment in documents - In the present matter Since there was no fraudulent intention whatsoever and the appellant had made application for amendment to the Bill of Entry mentioning about the facts in its entirety, the said application for amendment should have been allowed by the proper officer in terms of the powers conferred on him. There was no warrant to hold the goods liable to confiscation and impose any penalty. In these circumstances, the impugned orders are unsustainable in law. There is no evidence to establish that the appellant had prior knowledge of the excess import of goods and also when there is no evidence to establish any wrongful intent on the part of the appellant, further appellant had already filed application for amendment of Bill of Entry, then there is no justification for confiscation of the imported goods and imposition of penalty in this matter. In the result, the impugned order upholding confiscation of 1329 cases imported vide Bill of Entry dtd. 09.06.2022 and 11 wooden pallets is liable to be set aside. In respect of 2328 cases, the case of the department is that during the search of war ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arged by the revenue by production of positive evidence. In the absence of the same such allegation cannot be upheld on the basis of assumptions and presumptions - there are no justifiable reasons to uphold the impugned order. 729 cases of Beer imported without payment of duty - HELD THAT:- According to Rule 37 (2) of the said Rules, on failure to utilize or dispose off goods as provided, such goods shall be liable for payment of duty as if the goods have been removed to Domestic Tariff Area on the date of expiry of the said validity period under sub-rule (1). In the present matter there is no case of the department that the validity period of the Letter of Approval issued to the appellant has expired. Hence, demand of duty on 729 cases of beer is also not legally sustainable. The duty demand, confiscation of goods penalties imposed on the appellant firm and its partner and employee set aside - Appeals are allowed. - HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR And HON'BLE MEMBER (TECHNICAL), MR. RAJU Shri Vikas Mehta, Consultant appeared for the Appellant Shri Girish Nair, Assistant Commissioner (AR) appeared for the Respondent ORDER RAMESH NAIR M/s. Brew Barron LLP, Smt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 11 wooden pallets should not be confiscated under Section 119 of the Customs Act, 1962. (ii) the 2328 cases of subject goods having assessable valued at Rs. 52,73,873/- ---as detailed in Annexure B and Annexure C (including 729 cases mentioned in Annexure D) should not be confiscated under Section 111(m) of the Customs Act, 1962. (iii) the 511+ 483 cases of subject-goods having assessable valued at Rs. 73,14,312/- (though not physically available) as detailed in Annexure D should not be confiscated under Section 111(m) and 111(j) of the Customs Act, 1962. (iv) the classification of various kind/type of Liquor mentioned in Column II of Table V (in para -27.11) adopted by them under Tariff items mentioned in Column III of Table V respectively should not be rejected and the same should not be re-classified under appropriate CTH as mentioned in the Column IV of Table V respectively. (v) the customs duty amounting to Rs. 1,22,30,869/- chargeable on the said offended goods/cleared/sold in to the DTA (as shown in Annexure D) should not be demanded and recovered under Section 28(4) of Customs Act, 1962 and the Customs Duty of Rs. 12,57,982/- (vi) Interest at appropriate rate should no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... she has stated that the overseas supplier had provided them one certificate dated 23.06.2022 regarding mistake in dispatching excess quantity. The reason advanced by Ld. Adjudicating Authority for not entertaining the application for amendment is filing of amendment after seizure and not based on findings that the certificate was obtained after seizure. Ld. Adjudicating Authority has erred to give due consideration to facts stated in para 20.3 to 20.7 of the show cause notice that the steps for carrying out amendment of bill of lading based on which amendment of IGM and then Bill of Entry can be sought, were initiated on 23.06.2022, i.e. much prior to examination of container by DRI on 28/29.06.2022. 2.4 He also submits that, seizure of 917 cases that were duly declared in the Bill of entry is not tenable in the above fact. He further submits that the Ld. Adjudicating Authority has ordered for confiscation of 2328 cases of goods valued at Rs. 52,73,873/- under Section 111 (m) of Customs Act,1962 and has imposed redemption fine of Rs. 8,00,000/- in lieu of confiscation on the grounds that appellant had failed to explain the stock properly with documentary evidences. The findings ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds not identified. Mode of transportation not identified. Evidence regarding details of payment in lieu of such goods not available on record. He placed reliance on the following judgments.: (i) Nidhi Auto Pvt. Ltd. v/s Commissioner of Central Excise, NOIDA-I-2019 (6) TMI 899 CESTAT ALLAHABAD (ii) K. G. Constructions v/s Commissioner of Central Excise, Lucknow- 2018 (10) TMI 1207 CESTAT, ALLAHABAD (iii) Alladi Drilling Equipment Pvt. Ltd. v/s Commr. of C. Ex., Hyderabad -2010 (4) TMI 680 CESTAT, BANGALORE (iv) Commr. of C. Ex., Coimbatore v/s Rajaguru Spinning Mills (P) Ltd.,-2009 (5) TMI 226 CESTAT, CHENNAI (v) Commissioner of Central Excise, Raipur v/s Eureka Iron Energy Pvt. Limited,- 2017 (4) TMI 151 CESTAT, NEW DELHI. 2.7 He also argued that it is a settled law that duty cannot be demanded based on assumptions and presumptions. In this case, it is first assumed that goods were brought inside KASEZ and it is again assumed that such goods were removed from KASEZ in a clandestine manner. All this is without establishing existence of any such goods. Hence, no duty is payable on 729 cases of beer, 180 and 300 cases. 2.8 He also submits that for 511 cases, the appellant explained th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00006 dtd. 20.06.2022 deliberately mis-declared the same as 917 cases in the IGM No. 2314820 dtd. 21.06.2022 and KASEZ Bill of entry No. 1008329 dtd. 09.06.2022 with a malafide intent to clear the excess quantity of concealed 412 cases into DTA to avoid payment of Customs duty and other duties/tax. The Ld. Commissioner also relied upon the computerized/typed sheet containing detail of payment to allege that the appellant had remitted cash amount representing the price of 412 cases that were found in excess from container WHLU 2952855. Learned adjudicating authority has found that the goods in question do not conform to the declarations made in the entry made under the Customs Act, i.e. the Bill of Entry and other documents and hence held the goods liable for confiscation under the Customs Act, 1962. We find that in the present matter facts on record is that as regard the subject import consignment covered under Bill of Lading dtd. 20.06.2022, IGM dtd. 21.06.2022 and KASEZ Bll of Entry dtd. 09.06.2022 Smt. Suchita Bharatsingh Narwat, partner of appellant firm during the investigation deposed that they had placed two orders 917 cases and 1329 cases to the overseas supplier M/s Mufasa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for amendment should have been allowed by the proper officer in terms of the powers conferred on him. There was no warrant to hold the goods liable to confiscation and impose any penalty. In these circumstances, we find that the impugned orders are unsustainable in law. 4.2 We also find that the Ld. Commissioner also rely on the computer typed sheet and held that payment was made in cash. However, we find that there is no correlation of details mentioned in the said sheet with the goods imported by the appellant, hence we do not agree with the finding of the Ld. Commissioner. It is a settled principle of law that in adjudication proceedings, the charge of clandestine removal has to be definitely established on the basis of preponderance of probabilities, but it cannot be merely on the basis of presumptions and assumptions. Tribunal in the case of Kuber Tobacco Products Ltd. v. Commissioner of Central Excise, Delhi, reported in 2013 (290) E.L.T. 545 (Tri.-Del.) has held that suspicion however grave cannot replace proof and that the Revenue is not relieved altogether of burden of producing some credible evidence in respect of the facts in issue. In the case in hand, admittedly th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of confiscation of disputed goods applies only when goods have been concealed and have not been declared and not the entire quantity of goods. In such circumstances impugned order for confiscation of total 2328 cases of goods valued at Rs. 52,73,873/- and imposition of redemption fine of Rs. 8,00,000/- in lieu of confiscation is legally not correct and we hereby set aside the same. 4.5 Further as regard the demand on said 511 cases found short we find that apart from the shortages, there is virtually no other evidence on record to reflect upon the clandestine activities of the appellant. As per the settled law such shortages, by themselves, cannot lead to the fact of clandestine removals so as to justify confirmation of demands. Reference can be made to the Hon'ble Allahabad High Court decision in the case of Minakshi Castings reported in 2011 (274) E.L.T. 180 (All.) as also the Hon ble Punjab Haryana High Court in the case of CCE, Ludhiana v. Nexo Products (India) reported in 2015 (325) E.L.T. 106 (P H) and to another decision of the Hon'ble Punjab Haryana High Court in the case of C.C.E. S.T., Ludhiana v. Anand Founders Engineers reported as 2016 (331) E.L.T. 340 (P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce was placed by the department were admitted that the details mentioned in the said sheet are true. In C.C.E. v. Kuber Tobacco Product Ltd. [2016 (339) E.L.T. A-130] the Hon ble Delhi High Court has held that without any corroborative evidence, loose papers, documents cannot be sufficient to prove charges of clandestine removal. It is well settled that the allegation of clandestine removal is required to be discharged by the revenue by production of positive evidence. In the absence of the same such allegation cannot be upheld on the basis of assumptions and presumptions. The said legal principle does not require the support of any decision. In such circumstance we find no justifiable reasons to uphold the impugned order. 4.7 We also find that in the present matter Ld. Commissioner also held that the 729 cases of Beer imported without payment of duty and found expired during the Panchnama dtd. 28/29.06.2022, Appellant are liable to pay applicable Custom Duty on theses 729 cases so imported without payment of duty. In this context we agree with the argument of Ld. Consultant that according to Rule 37 (1) of Special Economic Zone Rules, 2006, the goods admitted to a Special Economi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
