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TMI Blog2022 (11) TMI 1160X X X X Extracts X X X X X X X X Extracts X X X X ..... on examination, the goods appeared to be PTFE Tapes. Further, the items like reading glasses (optical) of 'D & G' brand, SAIFI Brand with optical case and 3 D Dharmik pictures were found. Accordingly, the goods were seized and detained in the port area before out of charge. 3. During investigation, statement of Mr. Vivek Bansal, Proprietor of M/s. Dee Vee Posters was recorded, who, inter alia, stated that he procures the goods by personally visiting China or on email. For some of the goods like spectacles and its accessories, orders were placed by concerned persons, who were known through his CHA or other contacts. After import and receipt of the goods, he used to sell such goods by issuing invoice/bills in the name of different buyers, who placed orders for such goods and /or in the open market. Further, states that he was adding 5% margin on the goods. Further states that in some cases, he was not aware of the actual price of the goods and such goods were directly purchased by the buyers in India and he facilitates for the import and delivery. He also states that Atul Dhawan of Atul Traders (appellant) was mainly a buyer of lens, whom he knew through one Mr. Arora of Arora Opti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent sizes of the CR lens, which were found from the data retrieved from his CPU /mobile. 6. Pursuant to investigation, show cause notice dated 10.11.2015 was issued demanding customs duty of Rs.24,50,416/- on the allegation that the appellant is the 'beneficial importer' and have willfully suppressed the actual import value with intent to evade duty and as such, the duty is recoverable under Section 28 of the Act by invoking the extended period of limitation. 7. The show cause notice, inter alia, alleged as follows:- (i) M/s. Atul Traders failed to prove the lawful possession of goods detained at his shop i.e. M/s. Atul Traders, 6434, Katra Balyan, Fatepuri, Delhi. Hence, it appears that he has procured the goods without any cover of Bill/Invoice and duty paying document, out of goods imported illegally in the country and which was the stock found in the possession of M/s. Atul Traders on 11.11.2014. (ii) No stock register has been maintained by M/s. Atul Traders as per statement of his chartered accountant i.e. Dinesh Kumar Gupta, it appears that the said goods were either being purchased without bill or in other words unaccounted means or illegal imports. (iii) All sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to evade the customs duty. This act of omission and commission rendering the impugned goods liable to confiscation under Section 111 of the said Act. Therefore, the said M/s. Atul Traders are liable to penal action under Section 114 A and Section 114 AA of the Customs Act, 1962. 8. Show cause notice was adjudicated on contest vide order-in-original dated 2.1.2019 ordering confiscation of the goods under Section 111(m) valued at Rs.1,12,49,769/- with option to redeem the goods on payment of redemption fine of Rs.10 lakhs. Further, duty was demanded of Rs.24,50,416/- with respect to the goods covered under Panchnama dated 11.11.2014 and 22.07.2015 under Section 28, along with interest under Section 28 AA of the Act. Further, penalty of Rs.5 lakh was imposed on Mr. Atul Dhawan, Proprietor under Section 112 of the Act. Further, penalty of Rs.24,50,416/- was imposed on Mr. Atul Dhawan, Proprietor under Section 114AA of the Customs Act. 9. Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals), inter alia, on the grounds that - 9.1 That duty has been wrongly demanded as the appellant is not the importer but only a trader, who buys or procures the goods fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the premises of the appellant, does not make him the importer. 9.6 Merely on the basis of the statements, the appellant cannot be treated as importer and duty cannot be demanded. 9.7 It is also urged that the allegation of undervaluation of the goods is vague, as no retrieved printouts or data from the mobile or CPU of the appellant have been made part of RUDs. Neither any email or DGOV Circulars have been made part of the RUDs. 9.8 Evidently, no panchnama has been drawn for retrieval of the data or documents from the CPU /mobile of the appellant. Thus, the whole case made by Revenue is based on the statements and so called inadmissible data is bad in law and on facts. 9.9 It is evident that reliability of the statements is also doubtful as the same were recorded by Revenue in its office on their computer and the appellant have signed bonafidely on the dotted line. 9.10 It is urged that an admission is not conclusive to the truth of the matter stated therein. It is only a piece of evidence, weight is to be attached to the matter depending on the circumstances, under which statement is made. 9.11 Further, Revenue has erred in disbelieving the proper invoices and bills produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s only 12800 pieces Optical Frame as imported, which attracts duty to the tune of Rs.52,630/- only (as per department's own calculation mentioned at page 19 of show cause notice). However, the said demand is also not sustainable as appellant has not imported any subject goods. It is pertinent to mention that nowhere, it has been stated by the appellant that all the items seized from their premises were imported one. Hence, the demand made in the show cause notice and confirmed by the impugned order-in-original is arbitrary and is not sustainable. 9.16 Further, urged that as the appellant is not the importer, the provisions of valuation and re-valuation under Section 114 of the Customs Act read with relevant Valuation Rules are not attracted. Further, the show cause notice is silent as to under which Rule or method, the goods have been re-valued. As the appellant is not the importer and have purchased the goods from the open market in India, the order of confiscation under Section 111(m) of the Act is bad. Section 111(m) provides for - that the goods brought from a place outside India shall be liable to confiscation, if any goods, which do not correspond in respect of value or in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Vivek Bansal, Proprietor of M/s. Dee Vee Posters had in his statement stated that he has visited China for purchasing the goods for trade and had specifically stated that he had ordered the items like photo frames and its accessories. Further states that the order for spectacles and its accessories were placed by other persons, who were known through his CHA-Mr. Adil, and also stated that after importation, he sold the goods to the different buyers, who had ordered for such goods. He added 5% margin on the landed cost for such goods and also admitted that he knew Mr. Atul Dhawan (appellant). 12. One of the suppliers, Mr. Sunil Kumar Wadhwa, Proprietor of M/s. Ajay International in his statement dated 9.4.2015 had stated that he had imported glass lenses (finished lens/Rough Ophthalmic blanks) and Flints Buttons (used in making of Bi-Focal Glass) vide bill of entry mentioned against each invoice and had supplied the same to the appellant. Other suppliers also had tendered similar statements. Thus, it leaves no doubt that the goods have been imported by others/suppliers of the appellant. 13. It is urged that the appellant is a trader, who procures goods from the local market fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce being more reliable cannot be ignored. As the appellant admittedly is not the importer, as defined under the provisions of the Customs Act, the impugned order confiscating the goods and demanding duty is bad in law and on facts. The impugned order is also bad for violation of the provisions of Section 138 B of the Act, which requires that the Adjudicating Authority is required to examine and offer for cross examination of the witnesses of the Revenue, which have not been done by the court below. There is no evidence that this appellant has financed the imports made by other importers/traders. Further, I find that the show cause notice is vague, as valuation of the goods has been done by the Revenue without any relied upon documents (copy of any retrieved documents from mobile /CPU of the appellant). 17. Further, re-valuation done on the basis of the statements is bad in law and on facts. That the appellant cannot be held as importer as the appellant have identified the particular goods available with the particular manufacturer/supplier available in the foreign country and thereafter, purchased the goods by placing orders with the importers located in India. 18. Evidently, no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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