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TMI Blog2008 (6) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... CT scanners were being imported by suppressing the actual description in the Master Air Way Bills. The consignment was split into two, one imported at Bangalore and the other at Mumbai describing it as parts of CT scanner even though the Master Air Way Bill described them as complete CT Scanner. Even though the CT Scanner consisted of 75 and more component parts, only 7 to 8 sub-systems were imported evidencing that they were just sub-assemblies and not parts. As per statement dated 2-2-2001 of Shri Anup Mam, the goods imported are just assembled by a couple of technicians as per standard operating procedure for manufacturing and after assembly and testing and calibration, they are ready for sales. It was further noticed that the appellants had in the past imported similar complete scanner in Delhi and paid duty on them as scanner. In view of this it was alleged that they have deliberately split the consignment into two, to show that the goods imported were only parts, where in fact complete scanner was imported and this was done with a view to evade duty. Based on this show cause notices were issued demanding differential duty. M/s. Wipro GE Medical Systems Ltd. accepted all the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case for subsequent imports and in those cases the decision was upheld by Hon'ble Supreme Court as seen, from the order reported in 2001 (111) A54 (S.C.). It was held that when M/s. WGEMS itself cannot be held guilty for misdeclaration, then it cannot be held that M/s. Exel and its employee have aided and abetted the importer. 2. Separate proceedings were initiated against M/s. Exel for suspending/revoking their licence in terms of CHA Regulation Rules and accordingly show cause notice was issued to them requiring them to show as to why the licence should not be revoked under Regulation 22 of CHA Licensing Regulations, 2004. The charges in the notice, were based on the show cause notice issued to the importer for misdeclaration in the bill of entry with intention to evade duty. An Enquiry Officer was appointed and the Enquiry Officer in his order dated 21-8-2007 upheld all the Articles of Charges framed against the appellants as having been proved. A representation was filed with the Commissioner against the report of Enquiry Officer and Commissioner vide his order dated 26-2-2008 held' that the Articles of Charges have been proved against them and prohibited the appellants u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere in the nature of parts and the same has not led to any evasion of duty as alleged. Once the activity of declaring the goods as parts, itself is not illegal, their action describing the goods as parts in the Bill of Entry cannot be considered as violation of CHA Licence regulation which require them to declare the correct description of goods in the Bill of Entry as has been held by Commissioner. Since on this very ground the penalty imposed on them had been set aside, they cannot be made a ground for prohibiting them from working in Mumbai Custom House. In fact the Bangalore Commissioner's order dropping the proceedings against them for suspension of CHA Licence has not been challenged and when Commissioner Bangalore who has issued the Licence has found nothing irregular in the very same acts, the order of Commissioner Mumbai is clearly unsustainable. 6. Ld. DR refers to the findings of the Commissioner to show that the acts of mis-describing the goods in the Bill of Entry was done with clear intention to defraud the Government of its revenue and that the proceedings under CHA Regulations are different because under CHA Regulations the violation of Regulations in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods which would have shown that the goods imported are CT/e SKD Kits which were not eligible for the duty benefits under Customs Notification No. 16/2000. The e-mail of their counterpart in China Oliver Zhang had discussed the problem faced, which was that they could only export complete CT/e machine and the problem at India was that they could only imports parts. He had then gone on to suggest various ways of overcoming this and has suggested that separate HAWBs be made and the shipment be cleared at China using MAWB which will show the description correctly as CT machine and the clearance be made on India using the HAWB which will show the description as parts. He had effectively provided the foundation for the duty evasion that was being sought by M/s. WGEMS to avail benefits of Customs Notification No. 16/2000 for which they were not eligible. It is no way that these facts could not be in the knowledge of their unit in Mumbai. In fact as already discussed the e-mail correspondence with the Importers by them on the subject of CT/e SKD Kits import clearly indicate that they were in full knowledge that the said consignments were Kits and not parts of CT/e to qualify for the benef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CHALR, 2004 32. In this regard, I find that they are misplaced in understanding the substance of the CESTAT's order. The CESTAT gave liberty to the Commissioner of Customs to take a decision under CHALR. The penalties levied under the Customs Act, 1962 were set aside by the CESTAT, but the action under CHALR is pending, which is to be taken by the Commissioner of Customs. 35. I do not find any valuable reason to argue about the issue raised by the CHA that the charge in the show cause notice issued by the DRI under Customs Act, 1962 with regard to the alleged misdescription was repeated in the articles of charges. The articles of the charges were certainly framed based on the investigations carried out by the investigation agency; therefore, main allegations had to be abstracted from these contents only. In view of this, the CHA's argument is baseless. 36. The mis-declaration of imported goods i.e. Computerized Tomography Scanner Model - E (CT/e) as parts of CT/e could have been detected at initial stage itself, but the CHA had failed to do so, resulting in contravention of provisions of CHALR, 2004. Thus, the charged CHA miserably failed to discharge their ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... achine was imported in SKD condition and further accepted the liability to pay interest as held by the Settlement Commission, even though the Apex Court decision in the case of BPL India v. CCE, Cochin - 2002 (143) E.L.T. 3 (S.C.) = 2002 (50) RLT 249 (S.C.) CEGAT decision in the case of SAB Electronics Ltd. v. CC, New Delhi - 2001 (132) E.L.T. 161 (T) 2001 (44) R.L.T. l37 (T) and the Tribunal decision in their own case - 1999 ((106) E.L.T. 169 (T) which was confirmed by the Apex Court as reported in 2000 (117) E.L.T. A54 were very much in their knowledge and were referred to by them in their pleadings before the Settlement Commission. When the importer himself has accepted his mala fides, the appellant who were the Custom House Agent and who all along has the knowledge of mis-description of goods, cannot plead bona fide on his part at all. Reference is also invited to the Hon'ble Supreme Court in the case of CC. New Delhi v. Phoenix International Ltd. - 2007 (216) E.L.T. 503 (S.C.) wherein it was held that where bifurcation of imports made in SKD condition, intention plays an important role in matters in which there is an allegation of duty evasion - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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