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2015 (11) TMI 549 - CESTAT NEW DELHI

2015 (11) TMI 549 - CESTAT NEW DELHI - 2015 (325) E.L.T. 372 (Tri. - Del.) - Misdeclaration of goods - Penalty u/s 114AA - Confiscation of goods - Imposition of redemption fine - whether the case of the appellants that declaration in the B/E of a lesser quantity than the actual quantity imported, has happened only due to an inadvertent error, is believable or not - Held that:- the quantity of the goods was wrongly stated. Mis-declaration involves an element of mens rea or intention to evade paym .....

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statement on the part of M/s Bosch Chassis Ltd. The representatives of the CHA have merely relied on the invoice handed over by M/s Bosch Chassis Ltd./ Importer. The Commissioner (Appeals) have imposed penalty upon the representatives of CHA observing that they omitted to compare the invoices with purchase order and B/L. As there is no deliberate act or omission established, the imposition of penalty is unjustified. For these reasons penalty under Section 114A cannot be imposed. - penalty of  .....

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ain, Advocate For the Respondent: Shri R.K. Gupta, DR ORDER Per: Sulekha Beevi C.S. The allegation against appellants is that they mis-declared the quantity of goods imported. The appeals though arising out of separate orders are connected, as they arise upon the same facts/incident. Appeal No. E/53392/2014-CU(SM) is filed by the importer and the other two appeals are filed by the authorized respresentatives of the CHA, M/s Schanker India (P) Ltd. Therefore they were heard together and are dispo .....

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0 mts. as declared in B/E. It is the case of appellant that for the said consignment, the shipper had actually raised two invoices bearing Nos. 2011927 and 2011920 for the quantity of 40,000 mts. & 50,000 mts. respectively. That when the invoices were scanned & mailed to the appellants, by the shipper, instead of these two separate invoices, the shipper had scanned invoice No.20110927 (for 40,000 mts.) twice. Thus instead of receiving two separate invoices, they had received two copies o .....

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e released provisionally on execution of bond. The differential duty of ₹ 8,78,874/- was also paid. A show cause notice was issued to appellants which was finalized by passing the order dated 30.4.2013 which ordered confiscation of the goods and imposed redemption fine of ₹ 15,00,000/-. The duty and differential duty paid was ordered to be appropriated. A penalty equal to the differential duty (Rs.8,78,874/-) was imposed on M/s Bosch Chassis India Ltd. under Section 114A. Besides thi .....

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orized representative of CHA, M/s Schankar (I) Ltd under Section 112 (a) and a further penalty of ₹ 1,00,000 under Section 114 (AA) for assisting and handling clearance in respect of the B/E. The appellants filed appeal before the First appellate authority. The Commissioner (Appeals) vide impugned order dated 17.2.2014 upheld the order passed against M/s Bosch Chassis Esystem India Ltd., but dropped the separate penalty imposed on Vijay Kumar Mullankara. The Commissioner (Appeals) vide ord .....

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hat the mistake was not intentional. That the mistake happened only due to the shippers mistake, who scanned the same invoice twice instead of scanning the separate invoices of different quantity. He drew our attention to the contents of Bill of lading in which the quantity of goods is seen to have been correctly stated. He also relied upon the letter issued by the shipper acknowledging the mistake and mentioning the quantity that was shipped. Fortifying his arguments he relied upon the judgmen .....

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unsel argued that penalty under Section 114A cannot be imposed as there was no malafide intention or willful mis-representation and that quantity was declared incorrectly only due to mistake. Further, that penalty imposed on M/s Bosch Chassis Ltd. under Section 114AA is wholly unwarranted. That penalty under this provision can be levied only in those situations where export benefits are claimed without exporting the goods and by presenting forged documents. The learned Counsel adverted to the di .....

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rned DR, strenuously argued that there is mis-declaration of quantity of goods by the appellants. The Bill of lading shows total number of packages as 18 pallets and gross weight as 9,360 and serial number of two invoices is also mentioned. But in the B/E only one invoice was shown and duty was deposited only for this invoice. That there is deliberate attempt on the part of importer to evade duty and the CHA has connived for such act. He supported the impugned order and argued that the Commissio .....

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hase order on 19.11.2011 for supply of 1,00,0000 mtr of Hydraulic Oil Brake Hose for which two separate commercial invoices were generated by the supplier. It was for the first time that for one purchase order, two different invoices were generated by the foreign supplier. The supplier by mistake, instead of scanning the two separate invoices, scanned the same invoice twice. The second invoice of 50,000 mts was thus missed out. As only one invoice was usually generated by the supplier against th .....

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hey would not have submitted the Bill of Lading which showed the serial numbers of two invoices and also mentioned the entire weight as 9,360 Kgs. This argument advanced by the learned counsel for appellants is not without force. The goods were imported in two containers. The quantity found in container No. ESPU 2010630 carried 8 pallets (40,000 mts) and the quantity in Container No. DRYU 2350741 was 10 pallets (50,000 mts.). If the appellants had intention of evading duty by mis-declaring the q .....

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inning immediately on detection of difference in quantity of goods. The immediateness of the defence raised, supported by the Bill of Lading where the quantity was correctly stated, along with the letter of supplier acknowledging the mistake of scanning the same invoice twice makes the case put forward by the appellants as a probable one. From the facts and circumstances, it can be inferred that mis-declaration in the B/E was due to an inadvertent mistake which occurred because the shipper provi .....

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that it was not a case of wilful mis-statement as the goods were correctly described in the purchase order. The penalty imposed under Section 114A of Customs Act, 1962 was therein set aside on finding that it was a mistake. In the case in hand, the quantity of the goods was wrongly stated. Mis-declaration involves an element of mens rea or intention to evade payment of duty by the party. Mis-declaration can occur due to human error also. In the instance case, the appellants have been able to exp .....

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