TMI Blog2019 (8) TMI 1343X X X X Extracts X X X X X X X X Extracts X X X X ..... ather but instead of submitting on merits had prayed abeyance of adjudication in view of the desire to appear before the Settlement Commission it was utmost required on the part of appellant to be diligent about the impugned adjudication. Absence of requisite due diligence on the part of the appellant cannot be a ground to extend any benefit in his favour. The ground of medical sickness of the Proprietor of appellant is already opined not relevant as the appellant had already marked his presence through the father of the Proprietor thereof. With these observations, we are of the firm opinion that neither the Order under challenge is an ex-parte Order as alleged nor there is violation of principles of natural justice as alleged. Rather sufficient efforts are apparent on the part of the adjudicating authority to serve repeated reminders to the appellant to appear and submit on merits. The appellant wilfully opted to not to avail the said opportunity. The Order under challenge cannot be set aside on the grounds of violation of principles of natural justice. Valuation - HELD THAT:- The fraud in the form of forgery is very much apparent in the present case not only from the non re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein are the importers involved in the import of electronic items. They imported a consignment under Bill of Entry No. 9454459 dated 04.06.2015. The Department on the basis of indication by the officers of SIIB, ACC(Import) NCH, New Delhi for a 100% examination after they observed a substantial difference between the IGM and the said Bill of Entry filed by the notice, examined the goods. An envelope was found in the package showing the value of goods amounting to USD 6,890 which was the value as found mentioned in IGM as well. However, the declared value of the said consignment by the appellant was USD 890. On further examination of goods it was observed that the goods imported were five sets of standard transition as against one set declared in the Bill of Entry. During investigation, the statement of the proprietor of appellant alongwith that of all concerned including the CHA, M/s. Milap Logistics Pvt. Ltd. were recorded and the documents were collected from the airlines/carriers/banks, etc. On the basis thereof, the Department alleged under valuation as well as mis-declaration of the consignment under Bill of Entry No. 9454459 dated 04.06.2015. Resultantly, a show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was made to the Department to work out the figure of interest so that it could be deposited but there was no response to either of the requests of the appellant rather he confirmed the demand against him vide the Order under challenge, without appellant being heard. 3.2 It is also submitted that in the given circumstances, the Department was not even entitled to invoke extended period of limitation. The imposition of penalty under both the Sections i.e. 114A and 114AA of the Customs Act, 1962 has also been objected as both deal with the mis-declaration. It is submitted that penalty could be imposed under either of the said Sections to the discretion of the adjudicating authority but imposition of penalty under both these Section amounts to double jeopardy. With these submissions, the Order under challenge is prayed to be set aside and Appeal is prayed to be allowed. 4. While rebutting these arguments, learned Departmental Representative has submitted that it s not only the impugned Bill of Entry No. 9454459 dated 04.06.2015 but there has been as many as 190 Bill of Entries with respect to the prior imports by the appellant, as have been checked by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenge. This perusal is sufficient for us to hold that the Order is not an ex-parte Order and it has been wrongly so alleged by the appellant. Sufficient opportunity seems to have been granted to the appellant by the Adjudicating Authority. Also, the absence of appellant from 13.01.2018 to 24.06.2018 due to being abroad for medical treatment for chronic illness is also not opined sufficient to explain as to what prevented his father who appeared on 07.10.2016 on his behalf, to further appear or to at least tender the requisite document. The appellant had otherwise been corresponding with the Department. 6. We observe that till date the appellant has not produced anything to show that they ever approached the Settlement Commission nor there is any other effort post 07.10.2016, the date of personal hearing when father of the appellant attended the same that any reminder for continued abeyance for calculation of interest was ever given to the Department. There is nothing on record to show as to why the interest could not have been calculated and deposited in full by the appellant. Also, there is nothing on record to show that the notices as issued post 07.10.2016 were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof was declared at USD 890 FOB with the further admission that the said change in the value of the imported consignment was made keeping in view the cut throat competition in the market and in order to make some reasonable profits. The original invoices of value USD 6890 have been admitted to be intentionally replaced with the invoice having lesser value of USD890 to save the custom duty payable thereon which was done by the appellant by making a scanned copy thereof and by making the amendment therein. This admission is sufficient admission for alleged forgery on the part of the appellant to under-value the imported consignment with a clear intent to evade the customs duty. 8. Further, perusal of statement of Mr. Arvind Jawa (Proprietor of appellant) makes it clear that on earlier occasions also the appellant had similarly replaced the invoices showing the actual and higher value with the invoices showing lesser value and have thus repeatedly evaded the actual customs duty payable thereon. It is further observed that during the investigation the meticulous exercise with respect to comparing prior 192 Bills of Entry viz.-a-viz. the value reflected in the copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned consignment at the time of examination, i.e. with respect to Bill of Entry No. 9454459 dated 04.06.2015 whereas the Bill of Entry was mentioning only one set. Apparently, there is the difference in description of the imported goods as mentioned in the invoices issued by the exporter to the one annexed with the Bill of Entry. Even the Bill of Entry mentions the import of one set only. There is no evidence to support that five sets is actually equal to one set. We, therefore, are of the opinion that the adjudicating authority has committed no error while confirming the proposed mis-declaration of the goods imported by the appellant. 11. Coming to the aspect of imposition of penalty under both the provisions i.e. 114A and 114AA of Customs Act, 1944 11.1 Section 114A prescribes penalty in case of short levy or non levy of duty, i.e. in a case where the duty or interest as determined under Sub-section 8 of Section 28 of the Act and the interest payable thereon under Section 28AA of the Act has not been paid by the importer. Whereas, Section 114AA prescribes penalty for the use of false and incorrect material. No doubt, in case of use of false and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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