TMI Blog2018 (1) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue had accepted this order of the Commissioner (Appeals) the statement of the Appellant cannot be relied upon as the sole basis for imposition of penalty - penalty set aside. Appeal allowed. - Appeal No. C/132/07 - A/85050/2018 - Dated:- 5-1-2018 - Anil Choudhary, Judicial Member And Shri C.J. Mathew, Technical Member Shri V.K. Jain, Advocate with Mr. Roshil Nichani, Advocate for appellant Ms. Trupti Chavan, Asst. Commr (AR) for respondent ORDER Per : Anil Choudhary The issue in this appeal is whether penalty of ₹ 5,00,000/- have been rightly imposed upon the appellant under Section 112(a) of the Customs Act, 1962. 2. The appellant was a Director of private limited company namely Hab s Electronics Pvt. Ltd, which was engaged in the business of trading in electronic goods. The appellant had bought certain parts of electronic appliances from one Shri Jatin Shah who had in-turn bought them from M/s. Lakshan Electronics Pvt. Ltd, importer of the said goods. A show-cause notice was issued in 1993 alleging that the import of electronic goods and parts are in violation of Import Trade (Control) Restriction and Provisions of the Customs Act, 1962 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d) 111(o) of the Customs Act, 1962; that the 60 pieces of Satellite Receivers valued at ₹ 1,80,028/- (C.I.F) being consumer goods, are not permitted to be imported under clause 156 (i) of the Import Export Policy 1992-1997; that the goods under detention viz. 75,000 pieces of transistors and 5000 pieces of integrated circuits have been imported in violation of the conditions of actual user thus rendering the goods liable for confiscation under Section 111(d) and Section 111(o) of the Customs Act, 1962; that the transaction value under Rule 4 of the Customs Valuation (Determination of Price) Rules, 1988 (as amended) reflected in Bills of Entry No.112 dated 20.10.1992 and 150 dated 28.10.1992 is not the correct value as admitted by the appellant in his statement dated 16.11.1992. It therefore appears that true facts have been suppressed and true value mis-declared rendering the goods liable to confiscation under Section 111(m) of the Customs Act, 1962; that the goods under detention viz. 75,000 pieces of transistors and 5000 pieces of Integrated circuits are also liable to confiscation under Section 111(m) of the Customs Act, 1962 in view of the mis-declaration of the transac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the order of the Dy. Commissioner by observing that the appellant had in his statement admitted to under-valuation and the retraction by him was rightly rejected. No evidence of any contemporaneous imports at the same value was brought on record, proves that there was no under-valuation. The appellant was the mastermind behind the modus operandi and although he had not imported and violated the law directly, he had abetted the violation. 5. Being aggrieved the appellant is in appeal before this Tribunal. 6. The learned counsel submits that the impugned order have travelled beyond the scope of the show cause notice, inasmuch as there was no allegation in the notice to the effect that the appellant had abetted anybody else in violating the provisions of the Customs Act and the Import Trade (Control) Regulation. The allegation in the notice was that the appellant was real importer of the goods and that Lakshan Electronics was a dummy concern. Based on the submissions made by various noticees after examining the evidence on record, the adjudicating authority held that the charge leveled in the notice was not sustainable. 7. Thus, instead of dropping the charge, the adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onics. Further, the finding of the authorities below with respect to the appellant being the main beneficiary of the transaction is completely baseless since neither the show cause notice nor the order of the learned Commissioner (Appeals) contain any allegation and/or finding to this effect. So far the issue of undervaluation at the behest of the appellant as alleged, that same is completely baseless and untenable. 8. The learned Counsel also points out that in the appeal preferred by Shri D.P Dalal of Lakshan Electronics being appeal No. C/478/96 BOM the Commissioner of Customs (Appeals), Mumbai vide order-in-appeal No. 56/96 BP dated 29/10/1996 have been pleased to hold as regards the undervaluation the lower authority have relied upon the statements only and no corroborative evidence has been produced. The lower authority has not proceeded properly from one valuation rule to another while deciding the issue and did not act as per the well accepted guidelines laid down by this Tribunal. Accordingly, the issue of valuation was set aside and remanded for denovo consideration. 9. As regards other issues, the Commissioner (Appeals) had agreed with the Deputy Commissioner. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumer durables. Consumer goods appeared in Part II (Restricted items) of the Negative list of imports. Consequent to amendment in the definition of consumer goods, accessories, components, parts and spares of consumer durables fall in the Negative List of Imports. It was only the consumer goods under para-156 of the Import and Export Policy - 1992 97 which were not permitted to be imported except against a license or in accordance with a Public Notice issued in that behalf. Thus prior to amendment, the components parts and spares of consumer durables except those which were specifically included in the Negative List of Imports, could be imported by a manufacturer of the consumer durables without a license. In view of the amendment during the relevant period, as these imports being soon thereafter in near vicinity, we hold that there is no active violation on the part of this appellant as alleged. The appellant is not the importer of the offending goods but had purchased the said goods in through another intermediary, Shri Jatin Shah and this transaction of purchase was done against an invoice issued by the said Shri Jatin Shah and the payment therefore was made through normal banki ..... X X X X Extracts X X X X X X X X Extracts X X X X
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