TMI Blog2015 (8) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... d Rohinton Fali Nariman, JJ. For the Petitioner : Mr. Yashank Adhyaru, Sr. Adv., Mr. Rupesh Kumar, Adv., Ms. Shweta Garg, Adv., Mr. B. Krishna Prasad, Adv. For the Respondent : Mr. Abhay Anand Jha, Adv., Ms. Bina Gupta, Adv. ORDER A.K. SIKRI, J. Three consignments of imported goods landed at Mumbai Port. Bills of Entries for clearance of these consignments were filed by one M/s. Saidutt Clearing Agency Pvt. Ltd. (for short, 'CHA') on 30.07.2002. These Bills of Entries were filed on behalf of two importers, namely, M/s. Saumya Marketing (for short, 'SM') and M/s. Mega Enterprises (for short, 'ME'). It was declared that the consignments contained various electronic components/parts. These were supplied by the same supplier, M/s. Lim Manufacturing (Pte.) Ltd., Singapore. They had also arrived on the same vessel, viz., OLIVIA VW 005. However, after inspection of these consignments by the customs authorities, it was observed that not only the supplier was same and the consignments came through the same vessel, they were also shipped on board on the same day, i.e., 20.07.2002. Even the Bills of Lading for the three consignments were al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs and five-in-one music of Pioneer, Sony, Philips, Kenwood and Thomson can be made by assembling the respective parts. He also admitted that these goods were offered to him in Semi-Knocked Down (SKD) condition and he imported the same vide different Bill of Entries for tax management purpose. 5) Accordingly, a Show Cause Notice dated 09.02.2002 was issued by the Assistant Commissioner of Customs, Appraising Group VB, Mumbai, to the respondent no. 1 to 3 as well as ME and SM. It was stated in the show cause notice, inter alia, that the goods imported in SKD condition were nothing but complete units (2189 pcs.) of Car Cassette Players and Five-in-One Music Systems which were functional and all the parts had been imported, including screws; that the goods imported vide the three Bills of Entries were not parts/components of Electronic Goods, but were five-in-ones and Car Cassettes/CD with radio players of different brands; that the same were required to be classified under CTH 8527.21 of the Customs Tariff Act; that respondent nos. 2 and 3 had opened the fictitious firms viz., M/s. Saumya Marketing and M/s. Mega Enterprises with an intention to defraud the Government exchequer and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n para 17(iv) of the Show Cause Notice to be read as 43,22,319/- as per revised work-sheet. 7) Replies were filed by the respondents and also by SM and ME to the show cause notices as well as to the corrigendum. Thereafter, oral hearing was afforded by the Commissioner of Customs, Excise and Service Tax Appellate Tribunal (for short, 'CESTAT') which resulted in adjudication order dated 17.05.2004. The learned Commissioner ordered that the impugned consignments imported under the Bills of Entries in question be clubbed together and treated as complete units of 2189 systems comprising of car cassette players and five in one audio systems and should be classified under Customs Tariff Heading 8527.21. It was further ordered that the impugned goods be subjected to levy of CVD on the basis of MRP in terms of Notification no. 12/2002-CE(NT) dated 01.03.2002. The learned Commissioner also ordered to enhance the value of the impugned consignments to ₹ 89,09,602/- in terms of Rule 8 of the Customs Valuation (Determination Price of Imported Goods) Rules, 1988 and ordered to recover an amount of ₹ 37,95,206/- towards differential duty from the importer and/or respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscated under Section 111(m) of the Customs Act, 1962. (iii) As the adjudicating authority had not indicated the Section of the Act under which penalty was imposed on the respondents, the imposition could not be upheld. 10) It is how the present appeal came to be filed by the Revenue questioning the propriety of the decision rendered by the Tribunal. 11) The neat submission made by Mr. Adharyu, learned counsel for the Revenue, was that the Tribunal blindly applied the decision in the case of Sony India Ltd. (supra) with no regard to the facts of this case which 1 2002 (143) ELT 411 (Tri-LB) clinchingly show that the two firms which had purportedly imported the goods, namely, SM and ME, were bogus and sham and the real person who had effected the imports was Mr. Pundrick Ravindra Trivedi, who was the actual owner of these two firms and was, in fact, paying salaries to Mr. Patel and Mr.Soni, and they were set up as the sole proprietors of the aforesaid two firms on papers only. He further pointed out that there was no sufficient evidence/material produced on record, which not only formed part of the show cause notice but discussed in detail by the Commissioner in his or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported in the name of two dummy firms. Not only he admitted that the complete functional units of car cassettes players and five-in-one music systems of Pioneer, Sony, Phillips, Kenwood and Thomson can be made by assembling the respective parts. He also stated that these goods were offered to him in SKD condition and he imported the same vide different Bills of Entries for tax management purpose. 14) It is worth mentioning here that none of the three persons retracted their statements which were recorded under Section 108 of the Customs Act. 15) The legal approach that is to be adopted in this fact scenario is laid down in the case of Prasant Glass Works P. Ltd. Vs. Collector of Customs, Calcutta2 as under: The proposition that the transaction value as shown in the invoice has some sanctity and the burden in on the department to collect evidence to show that the invoice value is not genuine or below ordinary ordinary price in international trade at the time and place of import cannot be applied to cases of import where description is substantially inadequate, incomplete description in cases where the goods are not inspected and checked may mislead customs officers and de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiation is that in that case, the Court was dealing with the consumer goods like shoes and that was included in the negative list, whereas, the CKD in the present case (if at all it is to be CKD which was imported), was not in the negative list, it was in the restricted list. 14. In our opinion, the other differentiating feature and the most important one, is that while the parts imported by the assessee in this case could be independently used as the spare parts or sold in the market, that was not the case in Phoenix International Ltd. case (supra), at least there is no finding to that effect in Phoenix International Ltd. case. It was very fairly admitted by the learned ASG that the parts imported could be independently utilised or sold in the open market, which was not the case with the parts involved in Phoenix International Ltd. case. The learned ASG also very fairly admitted that there was a specific fraud alleged and proved on the basis of which the Court came to the conclusion that this was nothing, but a device to deceive the Revenue. 20) It is clear from the above that in Sony India Limited (supra) what was found that there was no allegation of fraud and there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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