9911796707
TMI Blog2019 (4) TMI 948X X X X Extracts X X X X X X X X Extracts X X X X ..... itti Impex (Appellant 1) and M/s Dee Vee Metals proprietorship concerns of Shri Dileep Kumar Dugar had imported "Non Ferrous Metal Scrap" by mis-declaring the value. They had also sold certain consignments on High Sea sales basis which also have been cleared by mis declaring the value. 2.2 Investigations revealed that M/s Bhitti Impex and M/s Dee Vee Metals had imported consignments of "Non Ferrous Metal Scrap" from UK, Germany and other countries. Enquiries were initiated through Consulate General of India (CGI), London and Brussels. Based on the reference made and investigations conducted a show cause notice dated 06.08.2008 was issued to M/s Bhitti Impex and others, 2.3 Subsequent to issuance of show cause notice, CGI, Brussels forwarded a report with regards to 34 consignments of the subject goods imported by the said persons from overseas supplier namely M/s Nord Schrott GmbH & Co KG, Fiensberg, Germany and M/s TSR Recycling GmbH & Co KG Hamsburg, Germany. It was intimated that these persons made part payment of the finally negotiated price (contract amount) with their supplier prior to shipments of goods and the balance at time of shipment of goods against the invoice which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said appeals tribunal stated " ..... for the reasons mentioned above, we set aside the impugned order and allow the appeal." The impact of the said order of tribunal is setting aside the whole of impugned order in appeal no 104-110 (Gr IV)/2017 (JNCH)- Appeal-II dated 21.02.2017 of the Commissioner (Appeal). Since the whole order in appeal has been set aside the present appeals also need to be allowed. The earlier order of Tribunal was passed relying on the decisions as follows: a. South India Televisions Pvt Ltd. [2007 (214) ELT 3 (SC)] b. Contessa Commercial Co Pvt Ltd [2007 (208) ELT 299 (T-Kol)] c. Ramkrishna Sales Pvt Ltd. [2008 (230) ELT 431 (T-Ahd)] d. Taito Watch Manufacturing Inds [2009 (173) ELT 17 (T-Del)] ii. Tribunal has in its earlier order also noted that original authority has recorded evidence showing that nothing had been paid more than the agreed price through the banking channels and thus there were no clandestine remittances over and above the invoice price and thus the whole case of under invoicing is required to be quashed. iii. Since the charges against them are identical to the charges against M/s Mittal Pigment Pvt Ltd, whose appeal have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oprietor of M/s Bhitti Impex and M/s Dee Vee Metals, Shri Ramesh Aggarwal Director of M/s Mittal Pigments, Shri Ramanand Agrawal Representative of M/s Associated Stabplast & Chemicals and Shri S Ayyappan Partner of Premier Pigments. The show cause notice demanded duty separately from each of noticee as detailed in Annexure attached to the show cause notice. Relevant details from the said annexure are reproduced below: S N Importer Bill of Entry Description Quantity in MT Supplier/ Shipper Duty Demanded No Date 1 M/s Bhitti Impex 752490 29.11.04 Nickel Silver Scrap Malic /Niece 19.62 M/s Nord Schroff Gmbh & Co 272030 2 879772 31.05.05 Shredded Nickel Silver Scrap /Niece 20.58 234146 3 M/s Dee Vee Metals 670715 13.01.06 Shredded Nickel Silver turning Scrap /Niece 17.72 219836 4 840747 07.12.05 25.14 M/S TSR Recycling GMBH 340962 5 M/s Mittal Pigments Pvt Ltd 744680 13.04.06 Zinc Scrap "Score" 44.84 506626 6 M/s Leadage Alloys India Ltd. 648295 16.12.05 Remelted Lead Ingots 53.72 M/s Nord Schroff Gmbh & Co 132059 7 M/s Associated Stabplast & Chemicals 642940 09.12.05 57.8 142090 8 M/s Premier Pigments 628455 23.11.05 105.66 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imply that relief has been granted to the all the noticees. A nine member bench of Apex Court has in case of Mafatlal Industries [1997 (89) ELT 247 (SC)] observed as follows: "70. Re : (II) :We may now consider a situation where a manufacturer pays a duty unquestioningly - or he questions the levy but fails before the original authority and keeps quiet. It may also be a case where he files an appeal, the appeal goes against him and he keeps quiet. It may also be a case where he files a second appeal/revision, fails and then keeps quiet. The orders in any of the situations have become final against him. Then what happens is that after an year, five years, ten years, twenty years or even much later, a decision is rendered by a High Court or the Supreme Court in the case of another person holding that duty was not payable or was payable at a lesser rate in such a case. (We must reiterate and emphasise that while dealing with this situation we are keeping out the situation where the provision under which the duty is levied is declared unconstitutional by a court; that is a separate category and the discussion in this paragraph does not include that situation. In other words, we are d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "23. We have found that Section 28(11) was inserted by Act 14 of 2011 w.e.f. 16th September, 2011. That alters the basis of the Judgments, which have been delivered by any Court of law, Tribunal or other authority. Once this section says that all persons appointed as officers of Customs under Section 1(4) before 6th July, 2011 shall be deemed to have been and always to be the proper officers for the purpose of this section, then, the Notifications, which are referred by us above at page 369 and 373 of the paper book are specifically saved and validated. They have been given a retrospective effect. These Notifications were holding the field and were not quashed or set aside. In the teeth of such Notifications, the legislature stepped in to clarify the position that if the functions of the Customs officer can be entrusted or assigned by the Central Government or the Board in terms of Section 6 of the Customs Act, 1962, then, all such Notifications, have been validly issued and enforced. They enable the Parliament to clarify that the officers mentioned therein shall be deemed to be the proper officers for the purposes of Section 17 and 28 of the Act. Precisely, that has been done in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The reference to Finance Bill therein denotes the bill by the section itself was substituted by Act 8 of 2011 w.e.f. 8th April, 2011. Prior to this Bill by which the section was substituted receiving the assent of the President of India, some cases were initiated and Section 28 was resorted to by the authorities. The Explanation 2 clarifies that they will proceed in terms of the un-amended provision. The position dealt with by insertion of Section 28(11) is distinct and that is about competence of the officer. The officers namely those from the Directorate of Revenue Intelligence having been entrusted and assigned the functions as noted above, they are deemed to have been possessing the authority, whether in terms of Section 28 un-amended or amended and substituted as above. In these circumstances, for these additional reasons as well, the challenge to this sub-section must fail." The decision of Delhi High Court relied upon by the appellant counsel has been stayed by the Hon'ble Apex Court. In view of direct decision of the jurisdiction High Court on the subject we do not find any merits in this submission too. 5.6 Now coming to issue in hand Counsel for appellants have relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted by various importers from Germany there was under invoicing. So the value of the consignments were enhanced and penalties were imposed. Being aggrieved, the appellants have filed the present appeals. 3. In the present case, Shri Dileep Dugar, Proprietor of M/s Bhitti Impex and M/s Dee Vee Metals has sold the "Non Ferrous Metal Scrap" on the basis of high sea sales. 4. The sole case of the department is made out on the basis of invoices of higher value received from Brussels through Consulate General of India ((Trade) for the impugned consignments submitted for clearance of the consignments." The facts as noted by the Tribunal in the said order is that the M/s Mittal Pigments had purchased the goods on High Sea Sale from Shri Dileep Dugar. It would be on the basis of sale price between Shri Dileep Dugar and M/s Mittal Pigments, that relevant documents for clearance of import consignment would have been filed. Thus the transaction value for determination of the assessable value would be sale price on High Sea Sales and not on the sale price between the foreign supplier and the Appellants therein. Further as noted by the Tribunal albeit wrongly that the appellant i.e. had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Others, held as follows: "6. The issue to be decided by us is that whether the documentary evidence produced by the High Commission of India, U.K. which was obtained from Italian Customs can be relied upon. If it can be relied upon, whether the value should be enhanced or otherwise. We find that the appellant declared the value as per the invoice shown to have been issued by M/s Delbi Fibres. However, on enquiry from the Italian Customs, documents were obtained from supplier M/s Delbi Fibres. Those documents are invoices, bill of exports, bill of lading and M/s Delbi Fibres in the said enquiry also submitted co-relation chart. On close scrutiny of these documents, we find that the invoice no. and date are matching with those invoices. Bill of export, bill of lading etc produced by M/s Delbi Fibres to Italian Customs authorities showing the higher value. 6.1 As regard authenticity of these documents, there cannot be any doubt for the reason that Italian Customs authority has obtained these documents directly from the supplier M/s Delbi Fibres and the same was obtained by the High Commission of India, U.K. From perusal of these documents, it cannot be said that these document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be doubted. 6.4 Taking into consideration of the documents produced as evidence, we are of the view that all these documents are authentic and cannot be doubted. If it is so, it is established that the appellant had under-valued the goods. Accordingly, enhancement of the value and confirmation of differential duty demand and penalty related to such demand are correct and legal. Hence the same are upheld. As regard the redemption fine, we find that though the redemption fine was imposed but the goods were not available for confiscation. In the case of Shiv Krupa Ispat Pvt. Ltd. (supra) wherein it was held that in case the goods are not available and if the goods are not released provisionally, redemption fine cannot be imposed. Therefore, in the present case neither the goods were available nor the same were released on provisional basis therefore, redemption fine imposed by the adjudicating authority is not legal and proper. Hence we set aside the redemption fine." 5.13 Thus we do not find any merits in the contentions raised by the appellants in their appeal or during the course of arguments. 6. The appeals filed by the Appellants are dismissed and the impugned order of Com ..... 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