TMI Blog2014 (2) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... No.C/102-104/2011-DB - Final Order Nos. A/10055-10057/2014-WZB/AHD - Dated:- 27-1-2014 - Mr. M.V. Ravindran and Mr. H.K. Thakur, JJ. For the Appellant : Shri J.C. Patel, Shri Anil Balani - Advocates For the Respondent : Shri K. Sivakumar, Addl. Commissioner (A.R.) JUDGEMENT Per: M.V. Ravindran; 1. These three appeals are disposed of by a common order as the issue involved in all these 3 cases emanates from same impugned order. 2. The relevant facts that arise for consideration are that the officers of DRI Ahmedabad gathered an intelligence that the appellant herein was involved in evasion of antidumping duty by resorting to mis-declaration of country of origin in the import of vitrified tiles falling under CTH No.6907. The investigation was conducted and the authorities came to a conclusion that the appellant herein was importing Chinese vitrified tiles on which antidumping duty was leviable. It was also concluded that the Bills of Entry which were filed in the name of M/s Shobha Plastics Pvt. Ltd, M/s H.V. Ceramics, M/s PFZ Corporation were incorrect in as much as these three units were dummy. After causing various verifications and recording statements of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les of Chinese origin and sought to evade antidumping duty by creating bogus certificate of origin needs to be tested on the definition of importer as given in Section 2(26) of the Customs Act, 1962. After reading of said definition, ld.Counsel would take us through the case laws which have interpreted the said provision of Customs Act, 1962. He would rely upon the following decisions:- i) Bimal Kumar Mehta Vs CC Mumbai 2011 (270) ELT 280 ii) Dhirubhai N. Sheth Vs. CC Bombay 1995 (75) ELT 697 iii) Ashwin Doshi Vs CCE Goa 2004 (173) ELT 488 iv) J.B. Trading Corporation Vs. UoI 1990 (45) ELT 9 (Mad.) v) Chaudhary International Vs CC Bombay 1999 (109) ELT 371 vi) Hamid Fahim Ansari Vs CC Nhava Sheva 2009 (241) ELT 168 (Bom) vii) Proprietor, Carmel Exports Imports Vs CC Cochin 2012 (276) ELT 505 (Ker.) 3. After taking us through the above said case-laws, he would submit that Hon'ble High Court of Kerala, Madras Bombay have interpreted the definition of importer as given in Section 2(26) of the Customs Act, 1962 as a person who holds out to be an imported or owner. He would submit that on this point itself, the impugned order needs to be struck down, hence we are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities for the clearance of vitrified tiles along with the complete set of documents were filed by M/s Shobha Plastics Pvt. Ltd., M/s H.V. Ceramics and M/s PFZ Corporation. On perusal of the copies of Bills of Entry produced before us as filed by these assessees, we find that they had specifically stated that they are importer of vitrified tiles coming from Malaysia and have also discharged the Customs duty as has been assessed by the lower authorities. As against the above said undisputed facts it needs to be seen as to who is the importer of the goods as per the definition of Section 2(26) of Customs Act, 1962, which reads as under: importer , in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner or any person holding himself out to be the importer. 7. The above said definition clearly lay down that the importers definition includes any owner or any person holding himself out to be an importer. The adjudicating authority, while coming to such conclusion that the appellant herein is to be adjudged as an importer in Para 31.3.1 has recorded as under: 31.3.1 From vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time anti dumping duty was charged @ 8.28 USD/SQ MT on the import of vitrified tiles of Chinese origin and to avoid this, it was decided to obtain the certificate of origin showing the country of origin as Malaysia and accordingly Mr. Danny has arranged the certificate of origin as Malaysia from Malay Chamber of Commerce. Further, the arrangement for the importation of the goods from Chinese port of Port Klang was also made by Mr. Danny. Thereafter, the goods were loaded from Port Klang to India. It was also decided to get made in Malaysia and our brand name Globe embossed on the vitrified tiles to be imported from China. This was done with an intention to show that the vitrified tiles imported by us were of Malaysian origin and to evade the payment of antidumping duty chargeable thereon. I also want to clarify that all the financing for the import of vitrified tiles were arranged by Shri Danny. As per the arrangement, Shri Rupesh Shah, employee of Shri Danny in India had given me import documents of the value of Rs.12 lakhs (approx.) in the name of PFZ Corporation, Vapi, Rupesh Shah had also given me Rs.6 to 7 lakhs (approx.) for payment of Customs duty. I had sent the origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e like this, wherein the Bills of Entry are filed by a front man of the real importer, the latter should be identified as the person chargeable with the duty. Mr. Bimal Kumar Mehra had acted only as a front man of Mr. Javed Alam who had actually taken all the necessary steps for importing Mulberry Raw Silk and cleared the same duty-free. It was Mr. Javed Alam who had actually financed Mr. Bimal Kumar Mehra for obtaining bank guarantee in his name. Mr. Bimal Kumar Mehra only subscribed his signatures to the Bills of Entry and undertook other Customs formalities for the benefit of Mr. Javed Alam. The goods after clearance were also handled by Mr. Javed Alam. In these circumstances, according to the learned counsel, Mr. Javed Alam should be held to be the owner of the goods and, for that matter to be the importer of the goods. The show-cause notices should have been directed mainly against Mr. Javed Alam for recovery of duty from him under Section 28 of the Act inasmuch as such demand of duty could be raised only on the person chargeable with the duty . This view, according to the counsel, would largely benefit the department in similar cases. The learned SDR has also referred to S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Mahendra Dalal, have agreed that the import was made in the name of M/s. Western Sales Corporation, Ahmedabad, though the entire import was motivated and financed by the appellant. In the circumstances, going by the benami arrangements, when the licences have been produced standing in the name of M/s. Western Sales Corporation and their validity otherwise is not questioned by the Department but accepted and debited, the goods cannot be said to have been imported in contravention of any prohibitions attracting the mischief of Section 111(d) of the Customs Act. All the same, in a benami transaction of this type, where, all the documents including the title to the goods standing in the name of M/s. Western Sales Corporation and even the import licences are standing in their name, the appellane, because of the fact that M/s. Western Sales Corporation are a benami firm, cannot plead for substitution of his name as the importer, for purpose of, either allowing clearance against those licences or allowing release on payment of redemption fine. It would have been a different question, if M/s. Western Sales Corporation were before us and had sought for clearance and in that case their pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te on the decisions of Dhirubhai N. Seth [1995 (75) E.L.T. 697] is well founded. There is nothing on record about the appellant herein having handled or have made any declarations on the Bill of Entry filed. No act of misdeclaration therefore could be brought on him, which would call for a liability to confiscation and therefore penalty under Section 112(a). iv) J.B. Trading Corporation Vs. UoI 1990 (45) ELT 9 (Mad.) 11. Before I proceed to consider the legal issues involved the facts may be detailed out. M/s. A.S. Shipping Agencies (P) Ltd., Madras Steamer Agents, for Vessel M.V. Velenje (by which the goods in question arrived) filed an import Manifest I.M. No. 887/86 on 17-9-1986. This is in accordance with Section 30 of the Act. The impugned consignments are covered by Line Nos. 150, 151 and 152 of the Import Manifest. The entries indicated in the Manifest against the above three lines are as under: Line No. B/L. No. No. of Bales Marks Nos. (1) (2) (3) (4) 150 0099/4871 G2 MDS-010 25 C.S-BC/Madras No. 80424/80448 151 C.990/4873 ZMDS-008 G 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iruvettiyur, Madras - 600 019 and hence returned to sender . On 27-3-1987 in view of the above, M/s. Continental Silk House, M/s. J.K. Silk Industries and M/s. Jeena Co., were called upon to show cause as to why the consignments should not be confiscated under Section 111(d) of the Act read with Section 3(2) of the Imports Exports (Control) Act, 1947. This was because the licence was obtained by fraud on the strength of the forged documents. The Importer and the Supporting manufacturers are fictitious firms. The said licence had, therefore, been cancelled. Meanwhile, by letter dated 21-2-1987 Mr. Balani, Advocate addressed a letter to the Assistant Collector of Customs on behalf of the petitioner stating that the three bills of entry filed for the clearance of the consignments could be noted and the clearance of the goods be allowed. To the said letter, the Assistant Collector of Customs replied on 31-3-1987 as follows: Please refer to your Letter dated 21-2-1987 on behalf of M/s. J.B. Trading Corporation, Bombay addressed to the Assistant Collector of Customs (Imports). You are hereby informed that one M/s. Continental Silk House filed three Bills of Entry for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er importation was a different issue. As rightly pointed out before us even in the second part of Section 2 of Customs Act, 1962 the significant words are before the clearance of the goods and there is no evidence to the effect that they held themselves out to be the importer of the goods by filing any proof of being the real importer before clearance. Even at this stage they have merely stated that they had placed orders and also emphasised that they had not imported but simply purchased the goods and had taken clearance because it was allowed by the customs themselves. In view of the above facts and circumstances even if there was a violation of the customs or the ITC provisions as held by the Collector, he could have given the option to redeem the goods only to M/s. Chaudhary Intt. and not to Sh. Biren Shah or Audio Visual Devices. He has therefore grossly erred in holding Sh. Biren Shah/Audio Visual as the importer and allowing them the clearance. It is immaterial in this connection as to whether Sh. Biren Shah or Audio Visual Devices gave any letter or stated that they were prepared to take clearance on payment of duty and fine or otherwise. As a matter of fact since it is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umber. - No person shall make any import or export except under an Importer-exporter Code Number granted by the Director General or the officer authorised by the Director General in this behalf, in accordance with the procedure specified in this behalf by the Director General. The expression import occurring in the said section means bringing into India of goods as defined under Section 2(e). There is nothing in the law which requires an importer to be either the consumer or even the buyer of the goods also. Even otherwise, we are of the opinion that it is a matter of common sense that no importer would consume all the materials imported. Necessarily, the goods imported are meant for sale to the consumer, in which case, if an importer, who enjoys the facility of I.E. Code imports certain goods in the normal course of business on the strength of a contract entered by such importer with either a consumer or a trader who eventually sells the imported goods to consumers. We do not understand what can be the legal objection for such a transaction especially where the import of such goods is otherwise not prohibited by law. At any rate, if the respondents have any tenable legal objec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
