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Shri Jayesh S Shah, M/s BS Trading Co Llc Dubai, Shri Bipin J Shah And Commissioner of Customs-Kandla Versus Commissioner of Customs-Kandla And M/s Dmp Enterprise

2015 (12) TMI 997 - CESTAT AHMEDABAD

Duty demand - Misdeclaration of goods - Imposition of interest and penalty - Held that:- There is no dispute that the mis-declared goods have been imported under the name of the proprietorship firm of Shri Bipin J Shah. He has also filed Bill of Entry and pre-deposited ₹ 25 lacs towards differential duty for all the 11 consignments of the impugned goods during investigation. Therefore, we find that Shri Bipin J Shah cannot escape from the mischief of importation of mis-declared goods. Ther .....

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Advocate And Shri Paresh V Sheth, Advocate For the Respondent : : Shri Alok Srivastava, Authorised Representative ORDER Per : Mr P.M. Saleem, The four appeals in this matter have been filed aggrieved by a common Order in Original of the Commissioner, Customs, Kandla, and therefore we take-up all the four appeals together for disposal. 2. The brief facts of the case are as follows. M/s DMP Enterprises, Gandhidham, imported a consignment from M/s B S Trading Co Lle, Dubai, and filed Bill of Entry .....

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, USA etc. After investigation, a show cause notice dtd 1.1.2008 was issued which was adjudicated by the impugned Order in Original. 3. Heard both sides. 4. The Ld Counsel, Shri Suriyanarayanan appears for Shri Bipin J Shah, who is the sole proprietor of M/s DMP Enterprises, and Ld. Advocate, Shri Paresh V Sheth appears for Shri Jayesh S Shah. Also, heard the Ld Authorised Representative for Revenue. Revenue has also filed an appeal against the same impugned Order in Original. None appears for t .....

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t of Baby Diapers was that of Shri Jayesh S Shah that Jayesh was doing the business of import of Perfumes, Shampoo. Soap and Talcum Powder etc. and that he (Jayesh) had asked him to start business of import of Baby diapers and that only his name was used for this purpose and rest of the things such as all the arrangement starting from contacting the overseas supplier, financial arrangement, clearance from the customs, payment of customs duty, payment of CHA charges, payment of transportation cha .....

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appeared in statement dtd 17.7.2007 of Shri Jayesh S Shah. 6. He further drew the attention of the Bench to Para 21 and 27 of the show cause notice, reproduced below: 21. Whereas a statement of Shri Jayesh S Shah was recorded on 17.7.2007 under Section 108 of the Customs Act 1962 wherein he had interalia stated that he is an employee with M/s H K Dave, CHA Co., that he had cleared two consignments of Baby Diapers on behalf of M/s H K Dave; that he and Shri Jitu had planned the import of branded .....

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ya Logistics from time to time which was used, among other things, towards payment of duty of the goods imported by M/s DMP Enterprises, towards the payment CHA charges, handling charges etc. In view of all these facts brought on record during the curse of investigation, it appears that the retraction of Shri Jayesh Shah as discussed in Para 23 above is liable for rejection as the same is factually incorrect tutored and malafide. 7. The Learned Counsel argued that Shri Bipin Shah was an importer .....

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ed his statement dtd 17.7.2007 vide his letter dtd 23.1.2007. He had also submitted an affidavit dtd 3.8.2007 in this respect. Ld Counsel argued that he is an employee of a CHA and he had no knowledge of such import of branded diapers, cosmetics and toiletries and other goods by Shri Bipin J Shah. He had only advanced an amount of ₹ 25 lacs to his brother-in-law as assistance. Shri Bipin J Shah is the importer in legal terms as the goods were imported in the name of his proprietorship firm .....

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ion 112A was warranted on him. He also pointed out that his request for cross examination of the witness and others were denied to him. 9. On the other hand, the Ld. Authorised Representative for Revenue submits that the impugned goods were supplied by M/s B S Trading Co, Dubai, on the orders of Shri Bipin J shah and the goods are being imported in the name of his proprietor-ship firm only and he had also filed the Bill of Entry for clearance of the goods. Further, Shri Bipin J Shah has also pai .....

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d the import as is evident from his statement dtd 17.7.2007 (relevant portion of which has been reproduced earlier). He has stated that Shri Jayesh S shah and Shri Jitu had planned the import of branded Diaper under the guise of unbranded diaper and that he has introduced Shri Jitu to his brother-in-law Shri Bipin J Shah. He also drew the attention of the Bench to the statement of Shri Bipin J Shah dtd 25.7.2007 (relevant portion of which has also been reproduced earlier) wherein Shri Bipin J Sh .....

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stoms duty, payment of CHA charges, transportation charges, transportation of the cleared goods to Mumbai and the subsequent sale was being looked after by Shri Jayesh S Shah. The Ld. Authorised Representative also drew the attention of the Bench to Para 27 of the show cause notice wherein it is mentioned that the Bank account statement of M/s Adithya Logistics and Shri Jayesh S Shah revealed that Shri Jayesh S Shah used to transfer money to M/s Adithya Logistics from time to time which was used .....

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at the port of embarkation was involved. Therefore, this case law is entirely different and cannot be extended to the present case. The Ld. Authorised Representative therefore, argued that the penalty imposed on Shri Bipin Shah, Shri Jayesh Shah and M/s B S Trading Co are warranted. 11. As regards the appeal filed by Revenue against the same impugned Order in Original, the Ld Authorised Representative submits that the Dept. has filed an appeal with the prayer that the Adjudicating Authority sho .....

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going through the records, we observe that this is a case of import of branded diapers, cosmetics and toiletries mis-declared as unbranded Baby Diapers. It is observed that the branded Diapers were stocked in front portion of the container so as to conceal toiletries which were kept behind. Shri Bipin J Shah whose proprietorship firm which imported the goods have blamed Shri Jayesh S Shah for the import of goods and has argued that it is Shri Jayesh S Shah who has managed the procurement of the .....

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n J Shah. He has also filed Bill of Entry and pre-deposited ₹ 25 lacs towards differential duty for all the 11 consignments of the impugned goods during investigation. Therefore, we find that Shri Bipin J Shah cannot escape from the mischief of importation of mis-declared goods. Therefore, the duty of ₹ 17,51,707/- demanded from his proprietorship firm, under the impugned Order in Original, alongwith interest as applicable, is upheld. 13. As regards penalty on Shri Bipin J Shah, the .....

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