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TMI Blog2021 (11) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... ported spare parts from M/s Bentley Motors Ltd. UK, which was the parent company. This appeal concerns 110 consignments of spare parts through courier mode. The authorised courier agent, upon arrival of the goods in India, filed the requisite courier Bills of Entry based on the declaration given in the respective invoices by the foreign consignor and it is stated that after being assessed by the proper officer and payment of requisite duty, the goods were delivered to the appellant and the requisite duty was collected by the authorised courier agent from the appellant. 3. A show cause notice dated 06.12.2016 was, however, issued to the appellant for the period 21.12.2012 to 25.05.2014 alleging that the appellant had cleared the said goods without disclosing the retail sale price [RSP] and in this connection reference was made to two Bills of Entry which were adjudicated upon by an order dated 24.11.2014 after investigation. Further investigation revealed that the appellant had in all imported 110 small consignments through courier terminal at Delhi and the consignments were cleared through courier not on RSP basis. It, therefore, appeared that the appellant had short paid customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supplier and the concerned courier company and the appellant had no role whatsoever. In fact the appellant received the goods and paid whatever charges were claimed by the courier company and no objection was ever raised by the customs authorities for assessment of the goods. The appellant was, therefore, not responsible for the alleged non declaration of RSP of the imported goods, nor was there any intent to evade payment of customs duty as was alleged in paragraph 17 of the show cause notice. It was, therefore, stated that the provisions of section 28(4) of the Customs Act could not have been invoked since the factual basis for invoking the extended period of limitation had not been made in the show cause notice. 6. The Additional Commissioner, however, by the order dated 30.10.2017 confirmed the demand of differential duty with interest and penalty. The relevant portion of the order is reproduced below: "27.2 Now the question is if they understood that the imported goods were subjected to CVD on the basis of RSP/MRP of the goods, then, being an honest tax payer, why they did not pay the duty on RSP while imported the goods through courier. It is true that it was also for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a lame excuse as the Courier company acts as per information given by their clients and it was duty of the appellant to inform the Courier company that their products attracted MRP/RSP. The suppression of the facts is evident as the appellant had knowledge of this aspect in as much as they were declaring MRP/RSP for imports through Air Cargo, Delhi but choose not to inform Courier companies in this regard. 5.5 As regards citation of various case laws by the Appellant is concerned, I find that the same have no bearing on the facts and circumstances of the impugned case as the facts are different then that of the case in hand." (emphasis supplied) 8. This appeal has been filed to assail the aforesaid order dated 12.03.2020 passed by the Commissioner (Appeals). 9. Shri Ashish Batra, learned counsel appearing for the appellant made the following submissions: (i) The authorized courier agent upon arrival of the goods in India filed the requisite courier Bills of Entry based on the declaration given in the respective invoices issued by the foreign consignor. After being assessed by the proper officer and payment of requisite duty, the goods were delivered to the premises of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice; PROVODED that before issuing notice, the proper officer shall hold pre-notice consultation with the person chargeable with duty or interest in such manner as may be prescribed. (4) Where any duty has not been levied or not paid or has been short-levied or short-paid or erroneously refunded, or interest payable has not been paid, part-paid or erroneously refunded, by reason of, - (a) collusion; or (b) any wilful mis-statement; or (c) suppression of facts, by the importer or the exporter or the agent or employee of the importer or exporter, the proper officer shall, within five years from the relevant date, serve notice on the person chargeable with duty or interest which has not been so levied or not paid or which has been so short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice." 13. A perusal of sub-section (1) of section 28 of the Customs Act shows that where any duty has been short paid for any reason other than the reasons of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Entry were filed by the courier agent on the basis of the invoices issued by the Foreign Consigner and after assessment by the proper officer, the requisite duty was paid by the courier agent, which duty the appellant paid to the courier agent on receiving the goods. The show cause notice, therefore, proceeded on an incorrect assumption that the appellant had not declared the RSP of the imported goods with intent to evade payment of customs duty on the imported goods. The order passed by the Commissioner (Appeals) also records a finding that the charge of mis-declaration and suppression is justified as the appellant did not declare the RSP for imports through courier despite knowing that they were chargeable to RSP. The Commissioner (Appeals) further recorded a finding that a lame excuse had been setup by the appellant by shifting the burden to the courier, though it was the duty of the appellant to inform the courier that the goods attracted RSP. The goods were described as motor parts in the Bills of Entry and, therefore, it was the duty of the proper officer to assess them or seek further information before assessment. On assessment by the proper officer, the duty was pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts" can have only one meaning that the correct information was not disclosed deliberately to evade payment of duty. When facts were known to both the parties, the omission by one to do what he might have done and not that he must have done, would not render it suppression. It is settled law that mere failure to declare does not amount to wilful suppression. There must be some positive act from the side of the assessee to find willful suppression. Therefore, in view of our findings made hereinabove that there was no deliberate intention on the part of the appellant not to disclose the correct information or to evade payment of duty, it was not open to the Central Excise Officer to proceed to recover duties in the manner indicated in the proviso to Section 11-A of the Act. We are, therefore, of the firm opinion that where facts were known to both the parties, as in the instant case, it was not open to CEGAT to come to a conclusion that the appellant was guilty of "suppression of facts." (emphasis supplied) 22. In Easland Combines, Coimbatore vs. Collector of Central Excise, Coimbatore [(2003) 3 SCC 410 ], the Supreme Court observed that for invoking the extended period of limita ..... X X X X Extracts X X X X X X X X Extracts X X X X
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