TMI Blog2009 (4) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... mran Mohd. Siddique (hereinafter referred to as the Applicants). 2. The brief facts of the case are that all the above stated five Applicants have filed the applications for seeking settlement of dispute. Applicants filed their application before issuing of the SCNs. The Commission in its Interim Order dated 14-1-2009 clarified that in absence of SCN having been issued period of and six months from the date of seizure of the goods not having been got over, no decision was possible at that stage. The Commission concured with the plea of the representative of Revenue that it would be hazardous to order provisional release of the goods prior to conclusion of investigation and issuance of SCN. The further proceedings would be taken up only when the applicant produced the SCN issued by the department authorities. 2.1 The facts leading to the case are that all above mentioned five Applicants are the importers who are allegedly indulged in illegal imports of various items and under-invoicing of the same. The imports were made using the IE Code of other Import-Export Code(IEC) holders. Proper payment of Customs duty on the import of consignments was allegedly evaded. On investigation i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his letter that the proprietor of the firm allowed Mr. Shaikh Abdul Hashim to use his IEC for importation of goods from China, and for this kind of act he was to get Rs. 10,000/- per consignment. (v) Declared premises of M/s. Fedex Traders was visited by the Revenue and it was found to be small room tenement located in a narrow lane chawl known as Gafoor Shet Chawl at Kurla and Shri Rahul Ganpat Adsule stays in a joint family with his brother and their families. Shri Rahul Ganpat Adsule, proprietor IEC holder allowed Shri Imran Mohd. Siddique to use his IEC to import consumer articles from China for a monitory consideration or Rs. 7500/- per consignment. Shri Imran Mohd. Siddique by using the said IEC, imported two forty feet container in past. He had also imported the third consignment vide B/E No. 627875, dated 30-9-2008 and paid Rs. 10,000/- to Shri Rahul Ganpat Adsule. 2.3 Finally a letter dated 3-10-2008 was forwarded to M/s. Seabird CFS (where the goods were lying) requesting that a written advance intimation be sent to R I division of the Preventive Commissioner of the Mumbai before forwarding the import container nos. (1) HDMU-6158000, B/E No. 630753, dated 1-10-2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the seized goods may be allowed. 2.7 Statement of all the five proprietors of firms were recorded under Section 108 of Customs Act, 1062 on 22-10-2008, wherein, they, inter alia, stated that they had not imported the subject goods. However his IECs have been used by (1) Shri Vaseem Shafi Tandel, (2) Shri Shaikh Mohd. Shabbir, (3) Shri Irfan Qureshi (4) Shri Shaikh Abdul Hashim and (5) Imran Mohd. Siddique. The said IE Codes were obtained by them in the month of August, 2008 by producing his electricity bill and PAN card. The proprietors of the respective firms did not know anything about export-import business, name of the overseas suppliers, goods imported, mode of communication with suppliers, mode of payment source of fund. The proprietors of the firms were having their mutual monetary consideration with the aforesaid persons. For this act all the proprietors had been getting Rs. 10,000/- or Rs. 7500/- from IE Code users for every import made on IE Codes. The IEC users knew about the C.H.A., payment of rent charges, sales tax registration, income tax return, PAN details and they used to pay all dues in the event of goods having been cleared by Customs. 2.8 The statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Impex 3,69,018.00 12,76,394.00 1,48,055.00 SD/INT/NSPU/44/2008/R I Dated 10-2-2009 M/s. ASR Enterprises 2,49,668.00 9,65,989.00 2,26,328.00 SD/INT/NSPU/41/2008/R I Dated 10-2-2009 M/s. Flex Overseas 3,34,659.00 12,77,431.94 2,97,081.00 SD/INT/NSPU/43/2008/R I Dated 13-2-2009 M/s. Fedex Traders 6,37,329.58 23,67,057.47 5,98,845.75 There is a huge difference in the declared assessable value and the ascertained assessable value. Moreover the importers failed to submit any documents in support of the declared price. 3. The five separate SCNs as mentioned in above table were issued to all the five Applicants by Joint Commissioner (Prev.) Mumbai, answerable to Commissioner of Customs (Import), Nava Sheva, Mumbai. The SCNs propose to reject the transaction value declared by the Applicants and charge the duty on the basis of assessable value determined by the Revenue after market survey. The goods imported in the past under five Bills of Entries were also proposed to be confiscated along with goods imported vide said Bill of Entry, under Section 111(d) 111(m). T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 637329.58 declared on B/E No. 627875 dated 30-9-08 and demand duty on the basis of assessable value determined after market survey. Confiscation of goods imported under B/E No. 627875, dated 30-09-08 and the goods imported in the past under two bills of entry is also proposed. Penalty is proposed to be imposed on M/s. Fedex Traders under Section 112(b) of the Customs Act, 1962. Personal penalty is also proposed to be imposed on Shri Rahul Ganpat Adsule Prop. of M/s. Fedex Traders and Shri Mohammed Imran Siddique under Sections 112(a) and 114AA of the Customs Act, 1962. 4. The five Applicants filed their applications on 15-12-2008 under Section 127B of the Customs Act, 1962 (in short the Act) for settlement of the case covered by the aforesaid Show Cause Notices before the Settlement Commission by admitting the duty amount of (1) Rs. 3,00,553/-, (2) Rs. 3,00,968/-, (3) Rs. 3,00,222/-, (4) Rs. 3,01,451/- (5) Rs. 3,97,166/-. They also prayed for grant of immunities from fine, penalty and prosecution. 5. The final hearing of the case was held on 20-2-2009. Shri C. Sujay Kantawala, Advocate represented all the five Applicants. The ld. Advocate made a strong plea for provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication of the additional duty (evaded duty) that must have been involved in those imports by the applicant has to be taken as absence of true and full disclosure and as such the applications did not merit admission and settlement. The Revenue objected for admission of the case and even if it is admitted no immunities from fine, penalty prosecution may be granted to the Applicants. He further requested the Bench for maximum imposition of fine penalty. 7. The Bench has gone through the records of the cases and has considered the contentions raised by both the parties. Bench observed that this is a case of admitted undervaluation in which it has been stated that the exercise of determination of assessable value has been problematic one on account of the goods being mostly sold without proper bills. It is further stated that the exercise is rendered still more problematic on account of all the subject goods not being sold from the said outlets, thereby rendering it difficult to ascertain the sale price of all the subject goods at a single point. It is against this factual background that preliminarily objection of the Revenue to admissibility of the objections in respect of 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances out of 5, the Bench is unable to appreciate or accept the greatly reduced duty liability admitted in respect of 5th Show Cause Notice. The Bench notes that goods in respect of all Show Cause Notices are to enter the same market and the Applicant or the ld. Advocate for the Applicant has not established with sufficient and fool proof material evidences to support the diametrically opposite contention raised by them in respect of this 5th SCN. Accordingly the Bench does not accept the reduced admitted amount of duty in respect of the 5th SCN as being a true and full duty liability in respect of these goods. The Bench sets out following terms and conditions under sub-section (5) of Section 127C of the Act for settlement of the case :- Customs Duty : The Customs duty in the case is settled at as follows : (1) M/s. Mansoor Arts - Rs. 3,73,847/-, (2) M/s. Atlas Impex - Rs. 3,92,463/- (3) M/s. ASR Enterprises - Rs. 3,88,858/- (4) M/s. Flex Overseas - Rs. 4,02,361/- (5) M/s. Fedex Traders - Rs. 7,87,869/-. All the above Applicants have deposited their duty amount, mentioned against their names, as above. Fine : As regards confiscation of the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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