TMI Blog2019 (8) TMI 1697X X X X Extracts X X X X X X X X Extracts X X X X ..... ime i.e. March April 2006. The on the basis of value of the contemporaneous imports Commissioner has determined that undervaluation in respect of Bones Software was o the extent of 38.98% and for Da Vinci software 48%. It is settled law that the value of contemporaneous imports can be a good reason for rejection of transaction value - thus, the value determine by the Commissioner on the basis of contemporaneous imports rejecting the transaction value cannot b faulted with. Penalty - HELD THAT:- Since appellants have suppressed the value and have misdeclared the description by using the phrase Customized to avail the benefit of exemption from payment of CVD, in terms of Notification No 6/2006CE, the penalty imposed under Section 114A of Custom Act, 1962 cannot be faulted with - while imposing the penalty under Section 114A, Commissioner has imposed penalty equivalent to duty plus interest, which is contrary to provision of the section itself wherein section prescribes that the penalty impossible to be equal to Duty or Penalty. Confiscation - Redemption fine - HELD THAT:- The goods were not seized and provisionally released to the appellants against any bond and bank gua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong with the interest amounting to ₹ 3,83,122/- under Section 28AB of the Customs Act, 1962. vi) The amount of ₹ 22,15,150/-deposited by M/s PFL vide Cash No 93 dated 25.09.2007 is adjusted towards duty demanded at (v) above and to the extent of ₹ 97650/- towards interest payable as at (v) above. vii) I impose a penalty amounting to ₹ 21,17,500/- plus ₹ 3,83,122/- on M/s PFL under Section 112(a) and (b) of the Customs Act, 1962. viii) I impose a penalty amounting to ₹ 3,00,000/- on Shri Namit Malhotra under Section 112(a) and (b) of the Customs Act, 1962. ix) I impose a penalty amounting to ₹ 1,50,000/- on Shri Nishant Fadia under Section 112(a) and (b) of the Customs Act, 1962. 2.1 Appellants filed Bill Of Entry No 599588 dated 12.04.2006 and 617071 dated 28.04.2006 for import clearance of two software s namely Da Vinci 2K and Bones . The value of the software s on CD Rom with user manual was declared at US$ 1,38,000/- and Euro. 1,45,000/-. They claimed benefit of Notification No 21/2002-Cus dated 1.03.2002 (Sr No 157), Notification No 6/2006-CE dated 1.03.2006 9Sr no 27) and 20/2006-Cus dated 01.03.2006 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispute in respect of the fact that duty could have been demanded against the goods cleared against the assessment order on Bill of Entry. Commissioner has in para 41.4 relying on the decisions n case of Priya Blue Industries [2004 (172) ELT 145 (SC)], Jain Shudh Vanspati Ltd [1996 (86) ELT 460 (SC)] ReRolling Mills [1997 (94) ELT 8 (SC)], held so. We do not find any reason to differ with the findings of Commissioner on this Account. 4.3 We also find that Commissioner has specifically concluded that the by misinterpreting the phrase customized software used in the notification appellants have wrongly availed the benefit of exemption notification 6/2006-CE. The phrase customized software was not open for any other interpretation as the same has been defined in the notification itself. Further by using the phrase customized on the invoice, in respect of the software, which was not customized software as per the notification was intentional misdeclaration to mislead the assessing officer, to avail the benefit of exemption notification. We are in agreement with the findings of the Commissioner and would also like to point out that Hon ble Apex Court has in case of Dilip Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nlal v. Commissioner of Customs - 2009 (238) E.L.T. 14 (S.C.) which holds that deemed value under Section 14(1) of the Customs Act, 1962 would prevail when price declared does not reflect the price at which the imported or like goods are ordinarily sold. These two decisions of the Hon ble Supreme Court provide adequate amplitude to the customs authorities to reject declared values on the face of misdeclaration of the goods and/or when the values are abnormally low. Customs authorities cannot be precluded from determining correct values for the purpose of charging customs duty and cannot be compelled to accept abnormally low values declared by the importers as has been done by the appellants in this case to the detriment of public revenue. 12. In a recent decision in Commissioner of Customs (Gen), Mumbai v. Abdulla Koyloth - 2010 (259) E.L.T. 481 (S.C.) the Hon ble Supreme Court has observed as follows :- 16. In Varsha Plastics Private Limited (supra), this Court while dealing with a similar situation where the importer had misdeclared in terms of value, description and quality of the imported goods, had held that :- It has to be kept in mind that once the nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty. Hence, the penalty imposed was against the express provisions of law. In these circumstances, we reduce the amount of penalty under Section 114A to ₹ 4,91,000/-. Tribunal in case of B Suresh Vasudev Baliga [2015 (329) ELT 433 (T-Bang)] held as follows: 4 . Apart from noticing that the issue is covered by the said decision, I also find that the expression used in the said Section 114A is or . For better appreciation I reproduce the said section. Section 114A. Penalty for short-levy or non-levy of duty in certain cases. - Where the duty has not been levied or has been short-levied or the interest has not been charged or paid or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful misstatement or suppression of facts, the person who is liable to pay the duty or interest, as the case may be, as determined under sub-section (8) of Section 28 shall also be liable to pay a penalty equal to the duty or interest so determined As seen from above, the said section is applicable to a person who is liable to pay the duty OR interest as the case may be, who shall be liable to penalty equal to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, the Hon ble Supreme Court held that redemption fine can be imposed if the goods are already cleared. Since, such release of goods is on execution of bond such fine was justified. We find that the Hon ble Punjab Haryana High Court in CC, Amritsar v. Raja Impex (P) Ltd. reported in 2008 (229) E.L.T. 185 (P H) held :- 12. It may also be noticed here that in the case of M/s. Weston Components Ltd. v. Commissioner of Customs, New Delhi (supra), the goods were released to the assessee on an application made by it and on the execution of a bond by the assessee and in those circumstances, the Hon ble Apex Court held that the mere fact that the goods were released on the bond being executed would not take away the power of custom authority to levy redemption fine. A reading of the judgment/order of the Hon ble Apex Court in M/s. Weston Components Ltd. v. Commissioner of Customs, New Delhi (supra), would show that the Apex Court has taken the view that redemption fine can be imposed even in the absence of the goods as the goods were released to the appellant on an application made by it and on the appellant executing a bond. Since the goods were released on a bond the positio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishant Fadia are liable to penalty under Section 112 (a) and (b of the Customs Act. Shri Namit Malhotra who was the Managing Director of the firm had a higher responsibility that Shri Nishant Fadia who was Chief Financial Officer. The Commissioner has held the Appellant 2 and 3 liable to penalty under Section 112(a) and (b) for the reason of position they held with Appellant 1. He has not assigned any specific act of omission or commission on their part which have rendered the goods liable for confiscation. Neither in para 11 of the Show Cause Notice, titled Analysis of Modus Operand ad the Role Played by Individuals- we do not find any act of omission or commission, attributed to these individuals for by which the goods have become liable for confiscation. Hence we are not in position to agree with the order of Commissioner imposing penalty under Section 112 (a) and (b) on Appellant 2 and 3. 4.8 Summarizing our finding in para s above- i. Demand of duty amounting to ₹ 21,17,500/- under Section 28 of the Customs Act, 1962 is upheld. ii. Demand of interest amounting to ₹ 3,83,122/- on the above duty demanded, under Section 28AB is upheld. iii. Pena ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
