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TMI Blog2020 (3) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... batch of 18 appeals preferred by appellants falling broadly in category of importer, CHA representative, Freight Forwarder, consultant, and individuals un-authorizedly engaged in customs clearance work. These appeals have arisen out of a common order-in-original No. 03/2017-18/V.S./COMMR (IMPORT) read with Corrigendum dated 20/07/2018 passed the Commissioner of Customs, ACC (Import), New Custom House, New Delhi. The status of the Appellants and the corresponding duty or/and penal liability confirmed against them by the impugned order has been tabulated hereunder:- Sr. No. Appeal No. Appellant Status Duty (Rs.) Penalty (Rs.) 1. C/53447/2018 Pax Technologies Pvt Ltd Importer 1,85,09,843/- 3,76,49,777/- 2. C/53448/2018 Latha Priyadarshini Importer NIL 2,39,00,000/- 3. C/52445/2018 Chinta Haran Ojha CHA Representative NIL 5,05,000/- 4. C/52446/2018 Rakesh Kumar CHA Representative NIL 5,05,000/- 5. C/53272/2018 Rajender Prasad CHA Representative NIL 6,30,000/- 6. C/53482/2018 Sushil Kumar Mishra Individual NIL 32,00,000/- 7. C/53491/2018 Rubal Logistics Pvt Ltd CHA firm NIL 5,28,000/- 8. C/53492/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proval Certificate and also BIS certification, but no compliance in respect of these policy provisions were made. (d) The imported consignments were grossly mis-declared with regard to description and were also mis-classified under different Customs Tariff Heading. The importer - Appellant wrongly described the 'dummy' or 'parts of debit / credit device' with intent to undervalue the goods and to avoid BIS certification and ETA from WPC. 4. The Bill of Entry-wise violations i.e. undervaluation, non-inclusion of transfer/licence fee and non-submission of BIS and ETA/WPC licence in respect of all the 14 Bill of Entry are summarized in the table below: S. No. B/E No. B/E Date Name of CHA Violations in terms of non submission of BIS certification / ETA Certificate from WPC / undervaluation / using forged invoices/mi-classification / mis-declaration 1 5994463 02.07.14 Chinta Haran Ojha Non submission of BIS / ETA from WPC 2 5994464 02.07.14 Chinta Haran Ojha Non submission of BIS / ETA from WPC 3 6221058 24.07.14 Chinta Haran Ojha Non submission of BIS / ETA from WPC 4 7817932 26.12.14 R U Imports Exports Pvt. Ltd. Non submission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssification, mis-declaration of goods as paper for printing in payment debit/credit device and Terminal (parts of payment debit/credit device), forgery of invoice, undervaluation and non-inclusion of the value of software in the assessable value of goods. 13 3851878 08.01.16 Prompt Air & Sea Cargo Non submission of BIS / ETA from WPC, mis-classification, mis-declaration of goods as D-180 Terminal (parts of payment debit/credit device), undervaluation and non-inclusion of the value of software in the assessable value of goods. 14 3851698 08.01.16 Prompt Air & Sea Cargo Non submission of BIS / ETA from WPC, mis-classification, mis-declaration of goods as D-180 Terminal (parts of payment debit/credit device), undervaluation and non-inclusion of the value of software in the assessable value of goods. 5. The investigation has brought forth a fact that though the goods were supplied by a supplier namely M/s Pax Technology Ltd., Hong Kong but to circumvent the registration of import in Special Valuation Branch (SVB) and examination by SVB branch of whether the buyer and supplier were 'related', and if so, whether the relationship influenced the transaction value, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be attributed to them as they provided all the documents as received from the oversea supplier to the syndicate comprising Shri Sanjay Kataria and associates; that the manipulations in the import documents and Bill of Entry were handiwork of the syndicate; that they were not party to the mis-declaration which was perpetrated by Sanjay Kataria, Sushil Kumar Mishra and Rajendar alias Raju, and in fact they became victim of nefarious designs of the aforesaid persons. It has further been added that had they been a party to the mis-declaration they would not have filed criminal complaints against Sanjay Kataria and others in police station. (ii) Undervaluation of goods: That they were not a 'Related Party' to the supplier M/s Pax Technologies Ltd. Hongkong but dealt with the supplier on Principal to Principal basis in as much as they did not ever considered themselves as 'Related Parties' and hence SVB registration and provisional assessment was not required in their case; that in the Master Distributor Agreement with the Supplier it is nowhere prescribed that purchase of software was a condition of sale of the hardware; that goods covered by initial three consignments only were in o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable for confiscation under Section 111(m) of the Customs Act for mis-declaration in the Bills of entry as the description of the goods in Bills of entry was wrongly depicted by the CHAs without their knowledge. Thus, they are not liable for penalty under Section 114A and 114AA as the fraud was perpetrated not by them but by other persons/noticees; that in absence of collusion, willful mis-statement or suppression of facts on their behalf, imposition of penalty under Section 114A was contrary to the language of the provision; that in the facts and circumstances of the instant case imposition of penalty was contrary to settled law that penalty being quasi-criminal is attracted only in cases of contumacious conduct or willful infringement of the statutory provisions which are conspicuously absent on their part; that they rely on the judgment in cases of Hindustan Steel [ 1978 (2) E.L.T. (J 159) (S.C.)] , Prashray Overseas [ 2009 (237) E.L.T. 720 (Tri. Chennai)], Suryakiran International [2010 (259) E.L.T. 745 (Tri. B'lore)] and Vaz Forwarding [2011 (266) E.L.T. 39 (Guj.)]; and finally that the penalty imposed was highly excessive and does not commensurate with the gravity of offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kuldeep Singh - a Freight Forwarder against imposition of penalty: That the Appellant had a very limited role of moving the goods from the Air Cargo Area to the importer's place for a limited period as an authorized representative of the importer; that he didn't have authority either to verify genuineness of the import documents or competency to deal with customs procedure; that he acted on the declaration, information and documents provided by the importer; that he didn't receive any consideration except agency fee; that neither he was involved in any manipulations of the documents nor defaulted in forwarding a revised invoice to the CHA for clearance of impugned goods; that he was not competent to verify or know the technicalities pertaining to the requirements of BIS/ETA certificates, classification or valuation of impugned goods; that no mens rea has been proved against him for invoking Section 112 and 114AA of the Customs Act; and finally that he seeks support from judgments in the case of Sneha Sales Corporation [ 2000(121) E.L.T. 577 (S.C.) ], Sampat Raj Dugar, Taparia Overseas, K. Uttamlal to advance his cause. (E) Appellant- Shri Rajinder Madhok - a Consultant against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage as held in S.P. Chengalvaraya Naidu v. Jagannath [1994 (1) SCC 1]. (iv) In a leading English case i.e. Derry and Ors. v. Peek (1886-90) All ER-1 what constitutes "fraud" was described thus : (All ER p. 22 B-C) "fraud" is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, carelessly whether it be true or false". This aspect of the matter has been considered by Apex Court in Roshan Deen v. Preeti Lal [(2002) 1 SCC 100], Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education [(2003) 8 SCC 311], Ram Chandra Singh's case (supra) and Ashok Leyland Ltd. v. State of T.N. and Another [(2004) 3 SCC 1]. Suppression of a material document would also amount to a fraud on the court, as held in Gowrishankar v. Joshi Amha Shankar Family Trust, [(1996) 3 SCC 310] and S.P. Chengalvaraya Naidu's case (AIR 1994 SC 853). No judgment of a Court can be allowed to stand if it has been obtained by fraud. Fraud u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orter accepted that the device D-180 was Bluetooth enabled, the import of which required NOC from WPC and ETA Type Approval Certificate. This fact establishes an attempt of wilful mis-declaration of description of goods and mens rea on behalf of appellants to evade duty and circumvent Foreign Trade Policy provisions applicable to impugned goods. It is also a matter of fact that even the Master Distribution Agreement mentioned 'transfer prices offered by the Company to the Master Distributor for the main POS models. Inbuilt contactless is included on models where available', despite this the appellant chose not to declare this fact and rather attempted to suppress the actual description for obvious reasons. (ii) Undervaluation of goods: That the Master Distribution Agreement prescribed that the appellant-importer was required to pay an amount of USD 15 towards Transfer Price of Hardware (D 180) per unit plus USD 45 per unit on account of Licence Fee; that similarly in respect to terminals S-90, SP-30 and D 200 terminals, the importer was required to pay an amount of USD 39, USD 75 and USD 25 respectively towards Transfer Price of Hardware per unit plus USD 60 for S Series and USD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssification under Chapter Heading No. 84713090; that even the catalogue of D180 MPOS produced during the argument mentions in the specifications that that machine incorporates, inter alia, Memory, Processor, Display, Keypad, Magnetic Card reader and Smart Card reader; that Memory and, Processor forms Central Processing Unit( CPU), Display forms the Output device and Keypad/Magnetic Card reader/Smart Card reader forms the input device and hence the Machine has the configuration of a full fledged ADPM; that the principle function of the device is automatic data processing and hence despite having some other alternative/complimentary functions like facilitating payments, the goods merit classification under Customs Tariff Heading 84713090 as ADPM in terms of Note 3 of Section XVI of Schedule I appended to Customs Tariff Act 1975; that the identical goods have been classified under Customs Tariff Heading 8471 holding the devices as Automatic Data Processing Machine in US Ruling NY E81686 dated 10.05.1999 an internet downloaded copy of which was submitted; that the said Ruling has persuasive value in view of the fact that India and USA are signatory to WTO and both countries follow HSN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of EXIM Policy to this effect; that as provisioned under Para 2.2 of the Foreign Trade Policy, all imported goods were also be subject to domestic laws, acts, rules, orders, regulations, technical specifications, environmental and safety norms as applicable to domestically produced goods; that according to General Notes to the Import Policy, the import of Point of Sale devices were subject to BIS certification, however, the Appellant-importers did not have the mandatory BIS certification for the goods imported; that the BIS subsequently produced were not relevant for the goods; that their various acts of omission and commission rendered the impugned goods liable for confiscation under Sections 111(d) and 111(m) of the Customs Act, 1962 and they rendered themselves liable to penalty under Section 112(a)/114A of the Customs Act, 1962; that, though the Deputy Commissioner, Import Shed instructed them to produce the catalogue, clarification and evidence to prove that the product declared as Dummy devices were indeed so and not Point of Sale devices, the appellants brought the catalogue and informed the Deputy Commissioner, Import Shed that the goods were meant for exhibit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments on the basis of which clearances were sought and also to guide the importer about the statutory requirements especially certification from BIS and WPC; that they filed the Bills of Entry on the basis of documents handed over not by importer but by an unauthorised person Shri Randhir Singh; that they did not take the catalogue from the importer and filed the Bills of Entry on the basis of information provided by Shri Randhir Singh classifying the goods under wrong classification; In case of live Bills of Entry the Appellant-CHA stated that they received the documents from Shri Randhir Singh and filed the documents on the basis of invoice submitted by him and regarding the chapter heading 39269099 under which the goods had been classified in two live Bills of Entry, they stated that they had done it by mistake as they thought that the goods were plastic parts of the device; that in case of the two live Bill of Entry item description was declared as 'Paper for printing in payment Debit/Credit Device'and'D-180 MPOS Terminal (Part of payment Debit/Credit Device)' whereas the actual goods under import in these two consignments were complete D 180 Terminals; that they didn't guide/a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion required for CHA/CB; that it was imperative on their part to guide the importer about the statutory obligation, however, instead of fulfilling the statutory certification for the goods handled by them, they secured clearance thereof; that they acted to help the importer to secure clearance of the impugned goods without statutory WPC and BIS certification for monetary benefits; that by their above-mentioned act of omission and commission, the Appellants-CHAs have rendered the impugned goods liable for confiscation under Sections 111(d) & (m) of the Customs Act, 1962 and thereby they have rendered themselves liable to penalty under Sections 112 and Section 114AA of the Customs Act, 1962; that all the Appellant-CHAs instead of handling the documents/goods/duty payment themselves have knowingly allowed unauthorized persons namely Shri Randhir Singh ,Shri Sanjay Kataria, Shri Sushil Kumar Mishra and Shri Rajender alias Raju to deal with consignments for monetary benefit; that such being the fact, the case is squarely covered by the decision of Hon'ble Madras High Court in the case of K.V.Prabhakaran 2019 (365) E.L.T. 877 (Mad.) wherein the penalty imposed on CHA in similar circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls of Entry No. 3526607 dated 09.12.2015, 3346966 dated 23.11.2015, 3141261 dated 03.11.2015, 2763917 dated 30.09.2015, 2121203 dated 03.08.2015 and 2094937 dated 31.07.2015, with an intention that the EDI System would facilitate clearance of the consignments under RMS, where no assessment or examination is generally required by Customs; that the Appellant was aware that even though lesser duty was paid to be paid/and to deposited with the Department, he with his accomplice-partners charged normal duty amount from the importer by creating forged documents and the extra money earned was distributed by the three - the Appellant , Shri Sanjay Kataria and Shri Rajender alias Raju; that he intentionally and maliciously associated himself with the impugned goods, which he knew were liable for confiscation under Section 111 of the Customs Act, 1962; that he was very much aware about the act of forging the invoices and other documents. He aggressively assisted the director of import firm to secure clearance of the impugned goods dodging inspection/examination of the said consignments by the Department. There are enough evidences to establish that the Appellant was intentionally and purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant- Consultant: That the Appellant Shri Rajinder Madhok is a consultant by his experience in the field and he advises the importer/exporter on the issue of related party transaction and SVB matters; that he facilitated the clearance of goods imported vide Bill of Entry No. 7817932 dated 26.12.2014 wherein the goods were mis-declared as 'dummy units'. He admitted that he guided Ms. Latha Priyadarshini to circumvent the issue of 'related party' transactions and SVB registration by suggesting her to show imports on High Sea Sale basis and as he had large cliental, he offered to arrange High Sea Sale of the aforesaid goods; that the importer had agreed to pay Rs. 34,000/- for his services in respect of advising her on executing a High Sea Sale agreement with an Indian Firm, however, Ms. Latha did not pay the said amount till date because she approached Shri Sanjay Kataria for clearance of the impugned goods imported by the said Bill of Entry. It has been established categorically that Appellant played a vital role by advising Ms. Latha Priyadarshini to circumvent related party transaction valuation of the impugned goods imported vide Bill of Entry No. 7817932 dated 26.12.2014. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .25 8.25 Exim Cargo Service 8. 3346966 23/11/ 2015 RMS Paper for printing in payment Debit/ Credit device D-180 Terminal (Part of payment Debit/ Credit Device) 48237090 48237090 50 42 .42 4.5 Exim Cargo Service 9. 3141261 03/11/2015 10 Paper Roll D-180 MPOS Terminal (Part of payment Debit/ Credit Device) 48237090 200 .25 Exim Cargo Service 10. 3239991 13/11/2015 10 D-180 (D- 180 Pin pad is used to connect with the laptop to do the transaction - connectivity via USB port only) 84702900 457 15 Rubal Logistics Pvt. Ltd. 11. 3526607 09/12/ 2015 RMS Paper for printing in payment Debit/ Credit Device D-180 Terminal (Part of payment Debit/ Credit Device) 48237090 48237090 1000 Rolls 2000 pcs. .25 1.5 Prompt Air & Sea Cargo Pvt. Ltd. 12. 3650483 19/12/ 2015 RMS Paper for printing in payment Debit/ Credit Device D-180 Terminal (Part of payment Debit/ Credit Device) 48237090 48237090 1000 Rolls 4600 pcs. .23 1.45 Prompt Air & Sea Cargo Pvt. Ltd. Apart from these 12 Bills of entry the appellant has imported two more consignments covered by Bil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he has also asked as to how the provisions of Special Valuation Branch can be bye-passed. Thereafter with connivance of several other persons she has mis-declared the basic details of the import consignments including the description of the import consignments. 14. A glance at the table mentioned in the preceding para No. 11 reveals that the MPOS machines were mis-declared as paper rolls/bar code reader and in some of the Bills of Entry the description of import consignment has been given as "S-90 model and paper with printing and payment debit/credit device". We find that a Master Distributor Agreement has been signed between M/s Pax Technologies, Hongkong and M/s Pax Technologies, India which makes the Indian arm a sole master distributor of Hongkong based companies products namely various models of 'Mobile Point of Sale/Point of Sale devices'. The master distributor agreement has an Appendix I which provides the transfer prices of various models of MPOS alongwith the prices of software, which is essential component for functioning of the MPOS devices. When the prices as given in the Appendix A to the master distributor agreement are compared with the declared import prices of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a single Bill of Entry filed by this importer. Of course the wrong description was adopted as a modus operandi to bye-pass the provisions of the Customs Act, 1962 readwith import-export policy of relevant time which required that consignment of MPOS/POS a No Objection Certificate in the form of ETA (Equipment Type Approval) from the WPC Wing of Department of Telecommunication and registration with Bureau of Indian Standards (BIS) and above all to evade customs duty. 16. Now, we undertake to analyze the findings given in the impugned order-in-original regarding mis-classification of import consignment under the Customs Tariff Act 1975 with an intend to evade the customs duty. We find that the import consignments of MPOS/POS have been classified as follows : In 3 Bills of Entry having No. 5994463 dated 02/07/2014, 5994464 dated 04/07/2014 and 6221058 dated 24/07/2014, the import consignments of MPOS have been described and classified as follows : "S-90 GPRS + ID BARCODE TERMINAL CTH 84709010" We find that Customs Tariff Heading 8470 primarily covers goods such as calculating machines and pocket size data recording device, cash registers etc., while the classification of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r various Bills of Entry have varied between U.S. $ 97 per unit to as low as U.S. $ 1.45 per unit for D-180 Model of MPOS. It has been established by the investigations that a 'Master Distribution Agreement' has been signed by the appellant - importer and its Executive Director Ms. Latha Priyadarshini with Pax Technology Ltd. Hongkong on 1 November 2014. Some of the relevant paras of agreement read as follow : "Appendix A shows current transfer prices agreed between the company and the master distributor of the company main products. The transfer prices may change with time in line with specific business deals or due to situation of the competitive nature. The commission due to the master distributor is defined as the % specified in Appendix A, calculated on the difference between the price paid to the company by the customers and the transfer price applied by the company to the master distributor". 20. On perusal of Appendix A of the master distributor agreement it reflects that the price of hardware of various models of the MPOS and POS have been provided by the Hongkong based company and it has very specially been provided that apart from the hardware price the licence fee f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order-in-original regarding confiscation of the import consignments, confiscation of customs duty and with regard to imposition of penalty under various Sections of the Customs Act on the appellant importer and its Director Mrs. Latha Priyadarshini. 22. Coming to the role of various Customs House Clearing Agents, we find it appropriate to mention before analyzing the role of individual CHA firms and persons, that every Customs House Agent plays a crucial role in ensuring compliance of provisions of Customs Act as well as various other allied laws of the country with regard to import/export of goods. They are also required to advice and assist the importers and exporters so that correct compliance of the provisions of statutes as well as correct payment of customs duty is ensured. In the present case, we find that the customs house agents (clearing agents) have not done their work in the spirit in which they have been appointed to work as the Customs House Agents. We find that appellants M/s Chinta Haran Ojha - Customs House Agent and Shri Rakesh Kumar - G Card Holder of same firm have filed two Bills of Entries having No. 5994463 and 5994464 both dated 2 July 2014 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se and unsuitable for its other uses. It is matter of record that during course of examination of subject consignment, the goods were found as not dummy or samples but the same were fully functional MPOS. It is therefore clear that goods were classified by Shri Maikhuri and the importing firm without going into detail about their true nature by referring to the relevant catalogue or product literature and without any documentary evidences. The CHA classified the goods as of dummy nature for exhibition/demonstration purpose to evade customs duty and other provisions of import-export policy. It has also come out from the investigations that the CHA firm and its Director have not interacted with the importer while taking the work of clearance work of the import consignment but all the documents such as invoice, airway bill etc. were taken from Shri Rajinder Madhok and thus have not shown due diligence in undertaking the work of clearance and have become part of the conspiracy to get the MPOS devices cleared without following the due requirements of Customs Act and Import-export policy. The investigation has also revealed that the clearing agent has filed the bill of entry showing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30/09/ 2015 RMS Paper Roll Barcode Reader S-90 48237090 48237090 80 40 .25 8.25 Exim Cargo Service 4. 3346966 23/11/ 2015 RMS Paper for printing in payment Debit/ Credit device D-180 Terminal (Part of payment Debit/ Credit Device) 48237090 48237090 50 42 .42 4.5 Exim Cargo Service 25. A glance at the details given above, makes a revelation of the extent of the mis-declaration which have been resorted to by the importer and its clearing agent M/s Exim Cargo. We are at pains to note that a sophisticated electronic equipments such as Mobile Point of Sale (MPOS) are being described only as S-90, paper rolls, D-180 (parts of payment debit/credit device), bar code reader etc. and has been classified under Customs Tariff Heading 48237090 which pertains to "other paper/paper board" cellulose wedding and webs of cellulose fibers, cut to size for sale, other articles of paper pulp, paper, paper board etc." It appears from the description given for clearance of consignment of the MPOS equipments declaring them as the products of the paper by the importer, its Executive Director, and especially the clearing agent namely M/s Exim Cargo Services and its Executive S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the description of the goods has been declared as D-180 (D-180 pinpad is used to connect with the laptop to do the transaction - connectivity via USB port only). The value of the goods has been declared as U.S. $ 15 per unit. The investigations revealed that under the Bill of Entry No. 3239991 dated 13 November 2015 a consignment of D-180 MPOS was imported by the importer - appellant and the description of the same has been mis-declared as 'pinpad used to connect with the laptop' via USB port and the transaction value has also been suppressed to a large extent. Here also, we find that the clearing agent had not taken any pain in verifying the true nature of the import item by asking for any catalogue or technical literature. The goods have been mis-classified under Chapter 84702900 in utter disregard to the provisions of the Customs Tariff Act. In the clearance of this particular consignment we find that the clearing agent never interacted directly with the importer, but accepted the import document from one freight forwarder namely Shri Kuldeep Singh of M/s VSG Shipping and Logistics Pvt. Ltd. Here also we find that the clearing agent and his executives/workers, namely G Card H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Sukhramani, a F Card Holder of Customs Clearing firm M/s Prompt Air & Sea Cargo Pvt. Ltd., in his statement dated 26 February 2016 that he has not referred to any catalogue or produced literature and he never met the importer and filed the Bill of Entry on the basis of documents handed over to him by Shri Randhir Singh. We find that the classification and valuation of the products have been mis-declared blatantly by the importer in connivance with the CHA firm namely M/s Prompt Air & Sea Cargo Pvt. Ltd. and its Executive Shri Kamal Kumar Sukhramani. It pains to note that sophisticated electronic goods namely MPOS equipment have been declared as a product of paper and the value declared is low as U.S. $ 1.5 per unit with utter disregard to the provisions of the Customs law. We are not impressed with the arguments advanced for taking a lenient view in this matter. We feel that CHA and its executive Shri K.K. Sukhramani knowingly have connived with the importer and its Director for resorting to such mis-declaration of description and value of the import consignments of MPOS and have thus evaded customs duty and violated the provisions of Allied Acts. Here also, we are in agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aria and one Shri Raju and all of them were forging invoice and other documents. The investigations have brought out the categorical role played by Shri Sushil Kumar Mishra that he was aware and participated in mis-declaration of description as well as the value of import consignment for and on behalf of the importer - appellant. We do not find any ground to take a lenient view so far as imposition of penalty on him under the provisions of Customs Act is concerned. 32. We have also considered the case laws cited by learned Counsels. We find that the case laws relied by the appellants may be having some relevance in normal cases of mis-declaration where either the importer has made an inadvertent mistake in providing description and classification of the product under import or where the clearing agent in such mis-declarations in not found involved. In the facts and circumstances of the case at hand, as it has come out in the preceding paras, that the importer - appellant and various clearing agent - appellants and persons were consciously part of the entire conspiracy of willful mis-declarations of the import consignments. These decisions would not help the appellant. 33. In vie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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