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TMI Blog2021 (11) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... ere examined as per the directions of the Additional Commissioner (Group-2) and it was reported that the goods are rightly classifiable under CTH 8209. On a reasonable doubt, the case was transferred to SIIB. Statement of the importer Shri Kalyan Kumar of V.R. Tools (Appellant) as well as statement of Shri B. Manoj Kumar Nair, Marketing Staff of M/s.Green Channel Inter-Port Services Pvt. Ltd., (CHA) were recorded. It appeared to the department that the appellant sought for amendment of the declared invoice details with fabricated invoice details in order to evade payment of Customs duty. Subsequently, as the proceedings were initiated and the request for amendment of the details of the invoice was not considered by the Department, the appellant through his Advocate sought for re-export of the goods. After due process, the original authority vide Order-in-Original dated 24.12.2012 denied the request for re-export and imposed penalty of Rs. 1,71,000/- on the importer under Section 114AA of the Customs Act, 1962. A separate penalty of Rs. 58,000/- was imposed on Mr. S. Manoj Kumar Nair (CHA) under Section 114AA ibid. The proposal to penalize both the noticees under Section 117 was dro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant's foreign supplier then ordered appellant to re-export the goods so that the actual goods ordered by the appellant can be supplied. Though the appellant requested to permit reexport of goods, that was not allowed. 4. The appellants requested for reassessment of the goods by amending the documents under Section 149 of the Act on the bonafide belief that wrong invoice was sent by the foreign supplier. The request for re-export was denied by the authorities below without any valid reason. 5. Ld. Counsel asserted that it was a genuine mistake that the wrong invoice, packing list and documents pertaining to clearance of goods were obtained by the CHA from the shipping liner and filed along with Bill of Entry for clearance of the same. The CHA had not obtained documents from the importer (appellant). The appellant came to know about the incorrect invoice only when the CHA asked them to pay a higher duty. The authorities below failed to accept that the mistake has occurred at the end of the foreign supplier who has sent wrong invoice through their sister concern. 6. The allegation by the department is that the appellant attempted to misuse provisions of Section 149 to under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esser amount. The second invoice is a fabricated one with the specific knowledge of the appellant. Mens rea of the appellant to misuse provisions of Section 149 is proved beyond doubt. The role of Mr.B. Manoj Kumar Nair for fabricating second invoice is also clear. Further, it is noted by the Commissioner (Appeals) that when the company profile of the supplier of the invoice for USD 23750 was examined on the website, it was seen that the said company is the original manufacturer of the goods imported and also deals with various other metallurgical products. The name of the supplier GY, does not figure in the list of Group Companies producing such products. The said supplier is not dealing with the kind of goods imported by the appellant and the profile of supplier GY shows that they are manufacturer/dealers of sandal, slippers, shoes made of TPR, PVC, PU and EVA material; that there cannot be any nexus whatsoever between these two suppliers in so far as type of goods is concerned. 9. It is stated by Shri B. Manoj Kumar Nair, Marketing Staff of Green Channel Inter-Port Services Pvt. Ltd. (CHA) in his statement given on 06.03.2012 that he originally filed Bill of Entry dated 15.11.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoice only when the CHA informed them to pay duty to the tune of Rs. 3,26,215/- which, according to them, was higher for the order placed by them. Thinking that it was a mistake in the invoice, they requested for amendment of the invoice amount as well as name of the foreign supplier. At this juncture, it has to be said that the description of the goods and the quantity of the goods in both these invoices appeared to be the same. 12. Ld. Counsel has submitted that personal hearing was conducted on 23.12.2021 by the adjudicating authority. However, they could not provide necessary documents as they received explanation from their foreign supplier only on 26.12.2011. He adverted to the letter issued by the foreign supplier to the Company GY, China dated 26.12.2011. the said letter is reproduced as under : "GUANGDONG YONGJINXING (GROUP) CO., LTD Date : Dec 26th, 2011 Have a Nice Day, As per our telecon we had with you on Saturday, we are very regret to heard about the inconvenience caused by us at the time of clearance in customs your end for the reason of the wrong docs which was sent by our counter-part. We have very crystal clear about that our sister concern M/s.TIANXIN IN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foreign supplier, the Company GY, China has requested the appellant to reexport goods so that they can send the goods actually ordered by the appellant. The letters issued by the Company GY, China dated 29.03.2012 is as under : "Guangdong Yongjinxing (Group) Co., Ltd. North High tech field, Economic development testing Zone, Chaozhou, Guangdong-52100,China DATE : 29.03.2012 To M/s.V.R.TOOLS No.7C MARUTHI NAGAR, COIMBATORE-6. Dear Mr.R.Kalyana Kumar We totally frustrated in clearance and re ship the merchandise of Carbide tips Shipped to you under B L No.0LC11100323CHEN dt.31st OCTOBER 2011. Which was wrongly shipped our shipping department by ignorance. We annoyed of your activities and delay in progress to re ship the materials. Hence we instructed our shipping line to carry out from your end through proper channel and back to China. Upon confirmation from the shipping lines then only we can ship your merchandise." "From, Guangdong Yongjinxing (Group) Co., Ltd. North High tech field, Economic development testing Zone, Chaozhou, Guangdong-52100,China To: Kind attn: Jannice Zhong/Gelen Shenzhen D Port International Logistics Co. ltd P 1102 Zhongly bui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication or to ascertain from the foreign supplier as to whether appellant had placed for orders for US 7140 or USD 23750. 14. After appreciating the facts and the documents placed before me, I have to conclude that it was a genuine mistake of issuing wrong invoice which has been used by the CHA to file the Bill of Entry. The wrong invoice of USD 23750 was not given by the appellant, but the same was collected by CHA from the shipping liner. The appellant cannot be implicated for such mistake by imposing penalty. Moreover, the penalty imposed under Section 114AA is attracted only when there is deliberate falsification of documents in order to get undue benefit. The Tribunal in the case of Commissioner of Customs, Sea, Chennai-II Vs Sri Krishna Sounds and Lightings (supra) observed as under : "6. The Ld. AR has submitted that the Commissioner (Appeals) has set aside the penalty under Section 114AA for the reason that penalty has been imposed by the adjudicating authority under Section 112(a) and therefore there is no necessity of further penalty under Section 114AA. I find that this submission is incorrect for the reason that in the impugned order in paras 7 and 8, the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X
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