9911796707
TMI Blog2024 (12) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... ant with Customs Authority of KASEZ. The excess quantity alongwith declared quantity was placed under seizure on 29.06.2022. The officers also carried out search of the business premises of Appellant and found 2049 cases of foreign brand liquor, beer, etc. which included 729 cases of beer which had expired in January, 2022. The said goods were detained for want of stock position and statutory records. The officers also found 279 cases of foreign brand liquor, beer, water bottles, etc. in a ceiling made in the business premises and the same were placed under seizure. As per the revenue during the course of search of office cum warehouse premises of appellant, the officers found a computerized/typed sheet which appeared to contain details of extra remittance made by appellant to the tune of USD 12702/- over and above the value declared in the invoices in respect of aforesaid container for an amount of USD 29638.65. On this basis, it was alleged that 412, cases were deliberately imported in the aforesaid container. 1.2 During the search the officers also found one computerized/typed sheet with heading "without bill" and "with bill" sale of brand-wise items; that it appeared that 180 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and penalties. 1.3 In adjudication, the Ld. Adjudicating authority vide impugned order confirmed the demand along with interest and imposed penalties on the appellants. He also ordered for confiscation of goods. Aggrieved by the said order, the appellants have filed the present appeals. 2. Shri Vikas Mehta Ld. Consultant appearing on behalf of Appellants submits that the goods are not liable to confiscation on account. The entire KASEZ is under physical control of Customs and hence, any excess import is eventually accounted for in the record maintained by the unit before clearance into DTA or re-export in accordance with law. 2.1 He also submits that the author of the computerized/typed sheet cited by Ld. Adjudicating Authority is not identified. Similarly, there is no evidence gathered from any "angadiya" regarding any extraneous payment by cash. Even going by the sheet cited by Ld. Adjudicating Authority, the total cash amount, if at all paid by the appellant, comes to Rs. 36,500,00/- (and not Res. 9,65,372/-), which is far in excess than the amount claimed by department to represent value of excess goods found from container. Hence, no co-relation with goods is established. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 111 (m) of Customs Act,1962. Hence, the impugned order for confiscation of 2328 cases of goods valued at Rs. 52,73,873/- is not tenable in the eyes of law and imposition of redemption fine of Rs. 8,00,000/- in lieu of confiscation is without any legal basis. 2.5 He also submits that the Ld. Adjudicating Authority has demanded duty amounting to Rs. 1,22,30,868.52 (as per details given in Annexure-D to the show cause notice) on 1720 cases of assorted items listed therein. Shortage admitted and duty amounting to Rs. 12,57,982/- paid by appellant. Duty is demanded on 729 cases of beer on the ground that the same was found expired when panchanama was prepared on 28/29.06.2022. According to Rule 37 (1) of Special Economic Zone Rules, 2006, the goods admitted to a Special Economic Zone shall be utilized, exported or disposed off in accordance with the Act and rules within the validity period of the Letter of Approval issued to the Unit. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.10 He further submits that inasmuch as 511 cases of goods found short on which appellant paid duty are also not available, orders for confiscation of the same and imposition of redemption fine in lieu of confiscation is not tenable in the eyes of law. He placed reliance on the decisions of Larger Bench of Tribunal in the case of Shiv Kripa Ispat Pvt. Ltd., 2009 (235) ELT 623. 2.11 He also submits that the Ld. Adjudicating Authority has not pinpointed any declaration, statement or document which is false or incorrect in any material particular, that was knowingly or intentionally made, signed or used, or caused to be made, signed or used, by all 03 appellants in the transaction of any business for the purposes of Customs Act,1962. Hence, imposition of penalty on the appellant as well as on co-appellants under Section 114AA of Customs Act,1962 is without any basis. 2.12 He prayed to allow the appeals filed by all 03 appellant but for the demand of duty amounting to Rs. 12,57,982/- (already paid by appellant), interest payable thereon and reduced penalty @ 25% in accordance with Section 114A of Customs Act,1962. 3. Shri Girish Nair , Learned Assistant Commissioner (AR) appearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a case of intentional misdeclaration of goods but an unintentional on the part of the person filing the Bill of Entry. Further the Section 149 of the Customs Act, 1962 provides for the amendment in documents after their presentation. The amendment sought by the appellant in the facts of the present case is justified and if such amendment are not allowed, Section 149 would loose its relevance and would become infructous and if such bona fide errors are not allowed to be amended, we really fail to understand as to what would be covered by the provisions of Section 149 of the Customs Act. Act provides for correction of such errors as may be seen from Section 149 of the Customs Act. It is on record that Appellant already had filed application for amendment in documents. We find that tribunal in the case of Maersk India Ltd. v. CC, Sheva - 2001 (129) E.L.T. 444 (Tri.-Mum.) wherein also penalty was imposed on the application made for amendment of IGM and this Tribunal held that there is no act or omission rendering the goods liable to confiscation under Section 111 of Customs Act, 1962 and consequently no penalty can be imposed. Similarly, in the case of James Mackintosh & Co. Pvt. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds 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 and we do so. 4.4 We also find that in respect of 2328 cases, the case of the department is that during the search of warehouse/ store room of Appellant, 2049 cases of foreign brand liquor, beer etc., were found which included 729 cases of Beer which expired in January 2022. Further, during the course of search carried out at the warehouse, in the ceiling of the back side portion of the warehouse, 279 cases of foreign brand liquor, beer, water bottles etc, were found. It was alleged that as regard the 2328 cases (2049+ 279) of foreign brand liquor beer etc. the authorized representative of appellant could not provide the stock position and any statutory records. Revenue also contended that they did not explain the purpose of preparing sheets /pages having heading "WITHOUT BILL' and ' W/BILL' thereby failed to provide proper documents and clarification with respect of the stock. The Ld. Adjudicating Authority has ordered confiscation of 2328 cases of goods valued at Rs. 52,73,8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d at the time of visit of the officers, without there being any other evidence, we find no reasons to uphold the demand. 4.6 We also find that as regard the shortage of 511+483 cases as allegedly cleared without bill it was contended by the Ld. Commissioner that printout of computerized /typed sheet containing heading 'Without Bill' and 'With Bill', under heading 'without bill' total 180 cases was mentioned. Further a handwritten paper/sheet containing heading 'W/BILL' and that of under heading 'BILL at its back side was found. Under the heading 'W'/BILL, total 303 cases of subject goods was mentioned. On the basis of said details Ld. Commissioner concluded that appellant has cleared the goods without issuance of invoices/ bill and without payment of duty. In this context we find that during the investigation, on being asked who had prepared these two pages/ sheet and under whose directions, Smt. Suchita Bharatsingh Narawat stated that she was not aware who had prepared these sheets/pages and under whose directions. On being specifically asked whether the goods mentioned in these pages under heading 'WITHOUT BILL' and 'W/BILL' were cleared from their warehouse without issuance of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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