TMI Blog2014 (9) TMI 1039X X X X Extracts X X X X X X X X Extracts X X X X ..... so, the differential demand of custom duty on such value and corresponding interest and penalties imposed under Section 114(a) of Customs Act, 1962 are upheld. Confiscation and redemption fine - Held that: confiscation of goods can only be made of physically available goods, if the same is seized and either lying under seizer or if provisionally released. As here the goods were not physically available for confiscation and redemption, the confiscation can not be made and redemption fine can not be imposed supported by various decisions. -Decided partly if favour of appellant - C/343, 475, 505, 506/2008-Mum - Final Order Nos. A/1541-1544/2014-WZB/CSTB/C-1 - Dated:- 29-9-2014 - Shri P.R. Chandrasekharan, Member (T) and Ramesh Nair, Member (J) Shri S.N. Kantawala, Advocate, for the Appellant. Shri A.K. Singh, Addl. Commissioner (AR), for the Respondent. ORDER [Order per : Ramesh Nair, Member (J)]. - The appellants filed these four appeals against a common order-in-original No. 20/2008/CAC/CC/KS dated 12-2-2007 as/detailed in the chart below :- Appeals against Order-in-Original No. CAO NO. 20/2008/CAC/CC/KS DATED 12-2-2007 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rking as an agent for foreign supplier M/s. IJIMASIA Pvt. Ltd., Singapore was searched from where some incriminating documents were recovered which contain information of price declared to custom as well as the actual price at which imported goods were purchased from foreign suppliers. Statements of various persons namely Shri Bhumish Shah, broker and indenting agent, Shri Ashok Raghveer Goyal, Manager and dealing person of the importer M/s. Saccha Soudha Pedhi were recorded. On the scrutiny of the seized documents, the confessional statements of the above person after confrontation with the incriminating documents. Show cause notice bearing No. DRI/MZU/D/25/SSP/2001, dated 1-9-2003 was issued to the appellants proposing demand of differential custom duty on the elements of undervalued amount, confiscation of the goods undervalued, penalties upon the importer, Shri Shivkumar Raghuveer Goyal- Proprietor of M/s. Saccha Soudha Pedhi, Shri Ashok Raghuveer Goyal- Manager and Shri Bhumish Shah. 2. In adjudication, the ld. Commissioner after consideration of charges levelled in the show cause notice and representation made by the Appellants vide order-in-original dated 12-2-2008 held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed goods on behalf of importers in the domestic market which comes to very meagre amount, therefore/he submits that the penalty of ₹ 16,00,000/- imposed is very harsh. 5. On the other hand the ld. Addl. Commissioner (A.R.) submits that entire case was made out on the basis of confessional statements of Shri Bhumish Shah and Ashok Raghuveer Goyal which were recorded on the basis of incriminating documents recovered from Shri Bhumish Shah and documents produced by Shri Ashok Raghuveer Goyal. The seazed documents clearly show the value to be declared before Custom Authority and value of the goods for the actual transaction with the foreign supplier, both the persons have categorically admitted undervaluation not only in their statement recorded from time to time but also on the basis of the mail correspondences between foreign supplier M/s. Ijimasia Pvt. Ltd., and Shri Bhumish Shah. As regard to the deviation made from the statement by both the persons during cross examination, he submits that documents were recovered from Shri Bhumish Shah and other documents and information provided by Ashok Raghuveer Goyal and both of them have admitted undervaluation in their respective s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by issuing invoices of much lower values. He also confirmed the payment towards differential value between the invoice value and the actual value were paid by the importers to shippers. He has also given the details of prices of cloves of Indonesia origin sold in Mumbai Market. He has stated that since June, 2000 approximately 22 consignments had been indented through him to the firms namely M/s. Saccha Soudha Pedhi Pune and other importers. (iii) He stated that since June, 2000 importers had declared much lower price than the actual price that not a single consignment of clove indented and imported through him were at actual price. (iv) The account in respect of the amount so collected were settled periodically; that the goods belonged to M/s. Saccha Soudha Pedhi and others importers indented and imported through him from M/s. Ijimasia Pvt. Ltd., has been sold in the market; that the sale proceeds of the goods were realized to the respective firm after receipt of the confirmation from M/s. Ijimasia Pvt. Ltd., about receipt of their dues(i.e. repatriation of amount arising out the difference in the declared values and actual values) from the respective importers. On bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ka, Sri Lanka; that the actual price negotiated and transacted with the supplier in respect of consignments weighing 19176 kg net of Madagascar Cloves supplied by M/s. Ismail and Mohmad Brothers (1992) Pte. Ltd. Singapore and vide their invoice M/s. SSP- 122/01 dated 12-2-2001 $4925 PMT CIF, Mumbai against declared value of $ 2750 PMT CIF; that the actual price negotiated and transacted in respect of second consignment weighing 24690 supplied by M/s. Ijimasia Pte. Ltd., vide their invoice No. 646/2k-01 dated 14-2-2001 was US $5200 PMT CIF Mumbai against declared value of $2750 PMT CIF; that the actual price negotiated and transacted in respect of third consignment weighing 23890 kgs supplied by M/s. Ijimasia Pte. Ltd., vide their invoice no. 681/2/k-0l dated 21-2-2001 was US$ 5200 PMT CIF Mumbai against declared value of $2625 PMT CIF; that the actual price negotiated and transacted in respect of fourth consignment weighing 10,000 kg [and] supplied M/s. A1 Javi Traders (LLC) Dubai vide their invoice no 1482 dated 24-2-2001 was $ 5050 PMT CIF against declared value of $2650 PMT CIF. (iii) Shri Ashok Raghuveer Goyal further stated that other importers were declaring lower prices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l was not prevented from retracting his statement immediately after recording his statement, therefore all his averments made during cross examination is clearly afterthought and statement given by him on 20 March 2001 hold good and the same was legally and correctly relied upon by ld. Adjudicating Authority. Moreover, he has provided various documents related to this case and categorically admitted undervaluation. He has in pursuance of his interrogation has also deposited ₹ 10 lakhs toward duty. From the statement it is clear that he was actively involved in all the activities of the appellant M/s. Saccha Soudha Pedhi therefore reliance of his confessionary statement cannot be disputed at all. Similarly as regard anything contrary to the statement of Shri Bhumish Shah submitted by him during cross examination after 5 years is also clearly afterthought and the same cannot be taken into account for the purpose of the defence of the appellant. Apart from admission of Shri Bhumish Shah and Shri Ashok Raghuveer Goyal in their statements and documentary evidence recovered from Shri Bhumish Shah the price of the goods indicated in the public ledger clearly suggests that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n namely to wait for test reports, had been discharged prior to adjudication. So we hold that the confiscation of goods and consequent redemption fine to he not maintainable. 2012 (278) E.L.T. 465 (Tri. - Ahmd.) COMMISSIONER OF C. EX., SURAT-II Versus MILLAT FIBRES Para 2. Revenue s main contention was that the assessee, while obtaining re-warehousing licence and licence to manufacture, under bond under Sections 58 65 of Customs Act, 1962, have inter alia undertaken to observe all provisions of Customs Act, 1962, Central Excise Act, 1944 and rules made thereunder. Therefore, the said bond is available for enforcing and for recovery of any fine. Revenue again relied upon the Hon ble Apex Court s judgment supra, holding that the department can confiscate the goods even if not available physically. The basic issue in this case is that whether the goods can be confiscated if they are not seized. It is a fact that only seized goods are liable for confiscation and redemption fine can be imposed in lieu of such confiscation. Such goods can also be released provisionally on certain conditions. In this case, the goods were never seized neither available for seizure. If the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we set-aside the confiscation of goods and dropped the demand of redemption fine. Thus, the Appeal No. C/475/2008-MUM filed by M/s. Saccha Soudha Pedhi is partly allowed in the above terms. Appeal No. C/505/2008-MUM This appeal was filed by Shri Shivkumar Raghuveer Goyal against imposition of penalty of ₹ 16 lakhs under 112(a) of the Customs Act, 1962. Shri Shivkumar Raghuveer Goyal is proprietor of M/s. Saccha Soudha Pedhi and the appellant firm was fastened with the demand of custom duty as well as penalty under Section 114(A) of the Customs Act, 1962, therefore no separate penalty once again should be imposed upon the proprietor under Section 112(a). The proprietor concern and the proprietor is one single entity, therefore, for the purpose of imposition of penalty, it can not be treated as two different persons. The following case laws support our aforesaid views - 2013 (287) E.L.T. 54 (P H) VINOD KUMAR GUPTA Versus COMMISSIONER OF CENTRAL EXCISE 9. Having heard learned counsel for the parties, we are of the considered opinion that proprietorship firm or proprietor thereof cannot be treated as two different legal entities. Partnership firm is a fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ship firm has no existence independent of proprietor and proprietorship firm is not a legal identity. Therefore, in view of the settle law penalty of ₹ 1 lakh imposed on the appellant M/s. R.K. Industries in Appeal No. C/590/2005 is set aside. In view of above settled position, we modify the order impugned by dropping the penalty of ₹ 16 lakhs imposed upon Shri Shivkumar Raghuveer Goyal. Accordingly, the Appeal No. C/505/2008-MUM is allowed. Appeal No. C/506/2008-MUM This appeal was filed by Shri Ashok Raghuveer Goyal against imposition of penalty of ₹ 12,50,000/- under Section 112(a) of Customs Act, 1962. From our above discussion on the factual matrix, it is clearly coming out from records that Shri Ashok Raghuveer Goyal was actively involved in undervaluation of imported goods by M/s. Saccha Soudha Pedhi ahd his categorical admission to this effect justifies the imposition of penalty under Section 112(a) of Customs Act, 1962. As per Section 112 it can be seen, penalty for the subject offence is prescribed is upto not exceeding the duty sought to be evaded or ₹ 5,000/- whichever is greater. In the present case the duty evaded is ₹ 68,82 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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