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2010 (8) TMI 685 - CESTAT, MUMBAIDemand - Evasion of duty - Undervaluation - Investigation revealed that the HSBs (except M/s. Visen Industries Ltd. and M/s. Pidilite Industries Ltd.) had entered into long term contract (usually valid for an year) with SPL for purchase of Styrene Monomer (SM) on HSS basis - Even if it was assumed that appellants were liable to pay duty on the total amount paid to SPL, charges paid for post importation facilities were required to be deducted to arrive at the correct assessable value - Till issuance of Circular No. 32/2004-Cus., dated 11-5-2004, Public Notice No. 145/2002, dated 3-12-2002 of the Custom House had prescribed addition of 2% towards HSS commission to the original invoice for computation of value for assessment of goods purchased on HSS basis - As rightly argued by the Revenue, in the case of warehoused goods, the process of import is complete only when the goods cross the customs barrier viz. when the goods are cleared for home consumption from the warehouse on payment of duty Regarding time limitation - As per the declaration in the Bills of Entry, the transaction was governed by the HSS contract and there was no other contract relevant to the value - this was a conscious and deliberate mis-declaration made by each of the HSBs in respect of each of the impugned imports. Therefore, the Commissioner rightly invoked the larger period to confirm the demands Regarding penalty - Held that: penalty imposed on each of the HSBs under Section 114A equal to the duty evaded is sustainable in view of our finding of deliberate suppression of payment of additional amounts for high seas purchase of SM. We consider the penalty of Rs. 3,00,00,000/- imposed on SPL under Section 112(a) of the Act to be on the higher side - As rightly argued, penalties could not be imposed on them u/s 114A as the provision is for imposing equal penalty as the duty on a person from whom duty is demanded u/s 28 (2) of the Act; there is no such demand on them - Appeals are partly allowed
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