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2019 (8) TMI 1343 - AT - CustomsPrinciples of Natural Justice - no opportunity was afforded to the appellant to either present the case or to be heard in the matter and the decision is as good as an ex-parte decision - application in the Settlement Commission with the prayer to keep in abeyance the adjudication proceedings - HELD THAT:- Till date the appellant has not produced anything to show that they ever approached the Settlement Commission nor there is any other effort post 07.10.2016, the date of personal hearing when father of the appellant attended the same that any reminder for continued abeyance for calculation of interest was ever given to the Department. There is nothing on record to show as to why the interest could not have been calculated and deposited in full by the appellant. Also, there is nothing on record to show that the notices as issued post 07.10.2016 were given to the appellant at the wrong addresses - In the given circumstances, especially when the appellant had knowledge of pendency of proceedings before the adjudicating authority and had appeared once through his father but instead of submitting on merits had prayed abeyance of adjudication in view of the desire to appear before the Settlement Commission it was utmost required on the part of appellant to be diligent about the impugned adjudication. Absence of requisite due diligence on the part of the appellant cannot be a ground to extend any benefit in his favour. The ground of medical sickness of the Proprietor of appellant is already opined not relevant as the appellant had already marked his presence through the father of the Proprietor thereof. With these observations, we are of the firm opinion that neither the Order under challenge is an ex-parte Order as alleged nor there is violation of principles of natural justice as alleged. Rather sufficient efforts are apparent on the part of the adjudicating authority to serve repeated reminders to the appellant to appear and submit on merits. The appellant wilfully opted to not to avail the said opportunity. The Order under challenge cannot be set aside on the grounds of violation of principles of natural justice. Valuation - HELD THAT:- The fraud in the form of forgery is very much apparent in the present case not only from the non retracted confession of the Proprietor of appellant but stands corroborated from the various documents recovered during investigation pointing towards the alleged under valuation - the under valuation of goods has rightly been held by the adjudicating authority below - demand of differential customs duty is upheld. Mis-declaration of goods - HELD THAT:- Apparently, there is the difference in description of the imported goods as mentioned in the invoices issued by the exporter to the one annexed with the Bill of Entry. Even the Bill of Entry mentions the import of one set only. There is no evidence to support that five sets is actually equal to one set - the adjudicating authority has committed no error while confirming the proposed mis-declaration of the goods imported by the appellant. Penalty u/s 114A and 114AA of Customs Act, 1944 - HELD THAT:- Section 114A prescribes penalty in case of short levy or non levy of duty, i.e. in a case where the duty or interest as determined under Sub-section 8 of Section 28 of the Act and the interest payable thereon under Section 28AA of the Act has not been paid by the importer. Whereas, Section 114AA prescribes penalty for the use of false and incorrect material - No doubt, in case of use of false and incorrect material there would also be the short paid duty or interest but all cases of short paid duty or interest may not be the cases of use of false and incorrect material. Hence, the scope of both the Sections is out rightly distinct. Quantum of interest - HELD THAT:- The non calculation of interest (as alleged), if any, on the part of the adjudicating authority is also not relevant for extending any benefit to the appellant, in view of the fact that appellant out of his own volition has deposited the entire differential customs duty and even the part interest thereof that too beyond the period of 30 days from the date of the show cause notice. Appeal dismissed - decided against appellant.
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