TMI Blog2015 (6) TMI 1003X X X X Extracts X X X X X X X X Extracts X X X X ..... inion. If the invoice does not have the description CRM but merely gives the chemical names and the HSN code number, then the case for the Department becomes weak. This is because the PRS can fall under 2852 or 3822 as mentioned in the notification itself. Moreover it was also submitted that even prior to addition of CRM in CTH 3822, the appellants were importing PRS and it is the submission on behalf of the appellants that PRS can fall under CTH 3822 or 2852 as the case may be. When so many conclusions are possible and when we find that goods have been examined, documents have been examined, even though there is no mention, if the examiner of the packages has called for the other documents, he would have definitely seen the invoice also. Moreover the Commissioner himself agrees that commercial invoices were available in the dockets. If the appellant's intention was to deliberately evade duty and ensure that mis-declaration does not get detected, the commercial invoices would not have been placed in the dockets (assuming that the dockets were not seen by the Customs officers but prepared and placed in the Customs Office by the Customs Broker). Because there is a difference of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Heard both the sides. 3. The learned counsels for the appellant made detailed submissions. Submissions and the contents of the appeal memorandum brought out the following points (Some points were not pressed):- 3.1. There was a dispute about the classification and the eligibility for exemption in the proceedings against the importer and the appellant under Customs Act, 1962 and without reaching conclusion, initiation of parallel proceedings under CBLR was not proper; 3.2. The observations of the Commissioner in the order that the decision in OIO dt. 28/08/2014 revealed that the appellant had committed and abetted in the evasion of customs duty and reached a conclusion on that basis under CBLR was not proper and therefore is liable to be set aside; 3.3. Appellants were not put to notice about the conclusions reached in the order dt. 28/08/2014 and this results in violation of principles of natural justice; 3.4. Imposition of penalty and action under CBLR has resulted in double jeopardy and on this ground, the impugned order is liable to be set aside; 3.5. Since there is a dispute with regard to classification, there could not have been any mis-declaration and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notifications); 3.13. It was also submitted that according to Regulations, revocation coupled with forfeiture of security deposit and imposition of penalty is not allowed and if the licence is revoked, forfeiture of security and penalty cannot be resorted to. 4. Learned AR would submit that the Customs Broker, according to the Regulations, advises his clients to comply with the provisions of Act and in case the importer does not do so, brings the matter to the notice of the Deputy Commissioner. In this case, even when the Department advised the CHA that exemption is not available, the broker continued to file the Bills of Entry claiming exemption for PRS. It was also submitted that in many invoices, it was clearly mentioned that the imported chemicals were CRM and in many of the other invoices, the invoices did not specifically mention that they had imported PRS. He also drew our attention to the observations of the Commissioner that in the relevant dockets of several Bills of Entry, the documentary evidences showing the eligibility of the importer for exemption were not available. It was also submitted that once broker was advised that the exemption is not available and es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kg. 10% - 3822 00 12 ---- Reagents for diagnosing AIDS .. .. Kg. 10% - 3822 00 19 ---- Other Kg. 10% - 3822 00 90 ---- Other Kg. 10% - 7. Initially, the heading did not contain CRM and the sub-headings. These were introduced subsequently. At Sl.No.164 of Notification No.21/2002, a concessional rate of 5% was provided for PRS falling under Chapter 2852 or 3822 subject to condition No.12. The condition No.12 reads as under:- 12. If the importer produces a certificate of the Reference Standard and copies of documents to substantiate that the organization or institution from where the Reference Standard has been imported is approved by the World Health Organization or International Organization for Standards. 8. The description of the item and the condition rema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laration and duty evasion. 9. The Commissioner has taken a view that the description of the goods was mis-declared as PRS on the Bills of Entry even though the supplier had indicated the same as CRM on the invoices. To come to this conclusion, Commissioner has observed that he called for dockets of the import clearances. He found that in none of the dockets of Bills of Entry filed and assessed and taken up for examination by him during the previous 5 years, certificates/copies of documents required as per the conditions of notification were available. On this basis, he observed that the claim of the appellants that all the requisite documents were shown to the proper officer at the time of assessment has no basis. There was no explanation as to why these documents are not available in any of the dockets. He also takes note of the fact that during the proceedings under Customs Act, the importer had contended that they were not required to produce the requisite certificates unless asked for. On this basis, he comes to the conclusion that the averments of the Customs Broker are only after thoughts. He has also given the list of Bills of Entry which he has perused from 2010 onwards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontents. Bill of Entry No.6005890 dt. 03/07/2014: In this case also, the examination order was detailed as in the case of earlier Bills of Entry but the examination report mentioned pharmaceutical reference standard description and part number were as per documents. In this case also in the invoice, description of the content is dangerous goods in excepted quantities. Bill of Entry No.7542044 dt. 29/11/2014: In this case also the examination report and examination order are as in the earlier case. However in the invoice in the description of the content, it is stated Pharmacopoeial reference standards not restricted . Appellants also produced several invoices wherein it has been stated specifically that the invoice and the goods are pharmacopoeial reference standards. 11. What emerges from the verification of Bills of Entry, examination reports and the examination orders is that as is the normal practice in the customs, in this case also, the examination order required the officer examining the consignment to check the description of the goods and also verify documents which are required to be produced before clearing the goods. The conclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduce any contract, brokers note, insurance policy, catalogue or other document, whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained, and to furnish any information required for such ascertainment which is in his power to produce or furnish, and thereupon, the importer, exporter or such other person shall produce such document or furnish such information. (4) Where it is found on verification, examination or testing of the goods or otherwise that the self- assessment is not done correctly, the proper officer may, without prejudice to any other action which may betaken under this Act, re-assess the duty leviable on such goods. (5) Where any re-assessment done under sub-section (4) is contrary to the self- assessment 25 done by the importer or exporter regarding valuation of goods, classification, exemption or concessions of dutyavailed consequent to any notification issued therefore under this Act and in cases other than those where the importer or exporter, as the case may be, confirms his acceptance of the said re- assessment inwriting, the proper officer shall pass a speaking order on the re-assessment, within fift ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to an importer to take the goods out of Customs charge without the knowledge of the Customs or without producing the documents which are required by Customs and when we see the fact that the OIA passed by the Commissioner(Appeals) covered 13 Bills of Entry of the importer, it would show that even though the self-assessment procedure was adopted by the importer, Department had not accepted and allowed the goods to go in all the cases without verification. This is further substantiated by the Bills of Entry details which we have examined, considered and given the details therein above right from 2011 onwards. 16. Therefore the Commissioner s observation that the fact that documents were not found in the dockets would show that the defence of the Customs Broker is nothing but an afterthought does not emerge from the facts and circumstances. The conclusion that there is no doubt that Customs Broker did not obtain necessary documents and did not produce the same is also not a conclusion that can emerge, especially in view of the fact that in the case of Bills of Entry produced before us, the examining officer was specifically directed to get the documents. It is quite possible that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... none of the cases he has recorded that the description of the goods was indicated as CRM in the commercial invoice. In the case of invoices examined by us, we have indicated that the description of the content are given in the commercial invoices. But we could not find the HSN code number in the invoices placed before us. In fact in the invoices seen by us, there is a remark: The importer shall be personally responsible for the tariff classification in the country of import and will assume the ensuing regulatory, fiscal, health and safety obligations . We reproduce the observations of the Commissioner in respect of one Bill of Entry, below:- Bill of entry No. and date 5599833/29.12.2011 Description on Bill of Entry Invoice No. Date SCR 2011-036859 Name of the supplier Conseil De L Europe - EDQM - Allee Kastner 7 - CS300266 Strasbourg Description on the Invoice Various chemical names HS code in invoice 3822000000 - Certified reference materials ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the learned Commissioner in paragraph 14.5 that in some cases, goods were reassessed and merit rate of duty was collected and importer had paid the duty and did not challenge, it was submitted that importer had challenged it. It is in support of this submission that appellants have produced the copy of the OIA which we referred to earlier, directing reassessment and passing of a speaking order by the adjudicating authority. It has been mentioned in the order, more than 50,000 consignments have been considered and conclusion has been reached that there was a need for reclassification and demand for duty. We can only consider the documents placed before us and consider the observations in the impugned order and the submissions made before us and in such a situation we cannot specifically say anything about 50,000 consignments since they are the subject matter of another appeal. Further it was also submitted that appeals filed by the importer challenging the classification is also before the tribunal and amount involved is more than ₹ 10 crores. 21. The Commissioner has also dealt with the letter dt. 30/09/2014 issued to the importer. He observes that the catalogues do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e imported chemicals, the label mentioned the item as PRS and in their discussion with the importer, they were told that these are PRS and on that basis and as per the instructions of the importer, they had filed the Bills of Entry. While the Commissioner observes that in respect of the examined documents, the Customs Broker should have verified with the importer, the question that arises is in spite of the fact that goods were examined and examination orders required detailed examination of goods and documents, how the Customs officers also missed the difference in description between the invoice and the bills of entry and also the labels on the goods. There is no observation as to whether goods were allowed to be cleared in spite of the difference between the invoices and the Bills of Entry. The Customs officer examined the goods and the documents has to be considered as obvious because customs officers have to be considered as more knowledgeable than the staff of the Customs Broker. There is no specific detail as to the date or time when the issue came to the notice of the Customs. Obviously, during the post audit of documents, this was found out and admittedly the dockets conta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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