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TMI Blog2018 (7) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... onomic Zone, Kandla, Kutch, Gujarat, have imported goods viz, Polyster Knitted Fabrics from various suppliers of China, in their unit in KASEZ by misdeclaring the rate of the said goods around USD 1.60/Kg (CIF Mundra) on behalf of their domestic buyers/ actual importers. After importing these goods in KASEZ, the said goods have been cleared by ZZEPL to four of their domestic buyers/ actual importers under DTA Bills of Entry on payment of customs duty, ZZEPL have cleared all the said goods in lieu of sales proceeds in Indian Rupees. The said four domestic buyers/ actual importers are Bhuria Overseas (IEC 3314003901) Rohtak, M/s Radha Trading India (IEC 0503036358), Delhi, M/s Sidhi Vinayak Importers (IEC 3313006426), Rohtak, M/s Milestone Eximp Pvt. Ltd. (IEC 0398002941), Mumbai. 4. From the evidence recovered during the searches conducted at various premises of M/s ZZEPL/ aforesaid four domestic buyers/ actual importers and from the statements of various persons involved, it appears that all the said imports have been done by ZZEPL on behalf of the said domestic buyers/ actual importers. Under the said arrangement, the said goods were to be first imported by M/s ZZEPL, KASEZ and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volved, it surfaced that all the said imports have been done by ZZEPL on behalf of the said domestic buyers/actual importers/its own DTA unit. Under the said arrangement, the said goods were to be first imported by M/s Zip Zap Exim Pvt Ltd (ZZEPL), KASEZ and then the same were to be cleared to one of the aforesaid Domestic buyers/actual importers/own DTA unit, who had negotiated with the overseas suppliers for the said imports, under DTA clearance. M/s ZZEPL were to be given a commission for their profit/commission and miscellaneous port expenses. The said DTA buyers/actual importers were directly negotiating with the said overseas suppliers with respect to their import of said goods. It was further revealed that the actual rate negotiated by the domestic buyers/actual importers with their overseas suppliers was far more than the declared price in the import documents submitted to the Customs Authorities. The differential amount over and above the declared invoice price was being sent to the said overseas suppliers through channels other than normal banking channel." The appellant approached Revenue for provisional release of the goods, which was allowed subject to the condition t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the said Section also the appellants are entitled to relief from all proceedings if they pay the entire duty along with interest and 15%. 2.1 He also relied on the decision of Tribunal in the case of AS Spices (Order No. A/85957/2018 dated 10.04.2018) wherein the conditions of provisional release were relaxed and only bank guarantee to the extent of 20% of the duty amount was imposed as the condition for provisional release. 3. Ld. AR pointed out that the instant case is not of simple case of under valuation but it is a case of a managed fraud. He pointed out that the appellants had directly entered into negotiations with the foreign suppliers of the goods and the goods were imported in the name of the SEZ Unit just to evade customs duty by under valuation. He argued that the Circular No. 35/2017-Cus dated 16.08.2017 prescribes relaxed conditions only for the cases not involving mis-declaration. He pointed out that in the instant case it was a conspiracy hatched to defraud the Government Revenue and the entire operation was carried out in a planned manner. He pointed out that the seizure memo clearly records all these facts. 3.1 He relied on the decision of Hon'ble High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove context, attention is also invited to the common order dated 19.05.2017 of the Hon'ble Delhi High Court in W.P.(C) No. 3965/2017 in the case of Mala Petrochemical & Polymers v/s The Addl. Director General, DRI & Anr. and WP(C) No. 4123/2017 in the case of Mala Petrochemical & Polymers v/s The Commissioner of Customs (Import) ICD, Tughlakabad, New Delhi & Anr., wherein the Hon'ble High Court has inter alio held that the distinction between provisional assessment and provisional release was perhaps not acknowledged in many of the orders earlier passed by the Court. Distinguishing between cases of misdeclaration vis-a-vis cases of diversion of goods, non- adherence to conditions of notification, undervaluation and misclassification, the Hon'ble Court has observed that ultimately, each case turns on its peculiar facts and there can never be a blanket rule that in all cases of misdeclaration 100% of the duty must be asked to be deposited or that if the importer is asked to do so then he cannot be asked to furnish a bank guarantee. The Hon'ble Court has also referred to the above mentioned case of Malabar Diamond Gallery P Ltd. v. The Addl Dir General DRI (supra) in which the Hon'bl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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