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TMI Blog2023 (6) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... of the cranes which was higher. They were also suppressing the freight charges paid to the shipping lines. Investigations were undertaken against the importer and a show cause notice dated 02.07.2012 was issued to M/s. Sunrise Heavy Lifters Pvt. Ltd. (noticee No.1), M/s. Kandla Cargo Handlers (noticee No.2), Shri Bajranglal G. Agarwal, Shri Madan Lalwani, Shri Mithesh Sethia and Shri Tavinder Obhan. In the said show cause notice, the present appellant was asked to show cause as to why:- "(i) Penalty under Section 112(a) and Section 112(b) of the Customs Act, 1962 in relation to the above mentioned goods which have been rendered liable to confiscation u/s. 111(m) of the Customs Act, 1962, should not be imposed on each one of them; (ii) Penalty u/s. 114AA in relation to the aforesaid goods should not be imposed on each one of them." 2.2 With reference to the show cause notices M/s. Sunrise Heavy Lifters Pvt. Ltd. (noticee No.1), M/s. Kandla Cargo Handlers (noticee No.2) and Shri Bajranglal G. Agarwal filed application before the Settlement Commission. By final order No. 85/Final Order/Cus/RKT/2013 dated 30.07.2013 in respect of M/s. KCH and the co-noticee Shri Bajranglal G. Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T)]. As an alternate submission, it is to submit that before the Hon'ble Settlement Commission, total penalty of Rs.10,000/- and Rs.5,000/- was imposed on M/s. Kandla Cargo Handlers and Shri Bajrangilal G. Agarwal respectively as against excessive penalty imposed of Rs.1,00,000/- and Rs.50,000/- u/s.114AA and u/s. 112(a) of the Customs Act, 1962 respectively on the Appellant in the present proceedings. 3.4 Arguing for the Revenue, learned AR reiterates the findings recorded in the impugned order. 4.1 I have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 For imposing penalty on the appellant, the impugned order records the following findings:- "31 I have carefully gone through the case records, written submission of the noticee and the submission made by the noticee during the personal hearing. I find that demand notice was raised to M/S SHLPL and M/s. KCH and the co- noticee Shri Bajranglal G. Agarwal for differential duty not paid due to undervaluation of the imported goods by them. There was also proposed for confiscation of the goods and imposition of penalty under Section 112(a). 4A and 114AA to them. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Since the Settlement Commission has already finalized the duty liability. interest, fine and penalty in of the old and used cranes and also department has accepted the said Settlement Commission both order. The importer M/s Sunrise heavy Lifters Pvt Ltd, M/s Kandla Cargo Handlers and Co-noticee Shri Bajrangial G.Agarwal had compiled off the above mentioned orders and deposited dues as tabulated below. Name of the Noticees Customs Duty settled by the Settlement Commission Interest Redemption Fine Penalty on M/s Sh M/s S Sunrise Heavy Lifters Pvt Ltd and Sh Bajranglal G. Agarwal vide Order No. 84/FINAL ORDER/CUS/RKT/2013 dated 30.07.2013: M/s Sunrise Heavy Lifters Pvt Ltd Rs. 80,37,241/- paid vide Challan/cash No. 704 dtd 30.08.2013 Rs. 59,47,654/- paid vide Challan/cash No. 1563 dtd 30.08.2013 Rs. 5,00,000/- paid vide Challan/ cash No. 1566 dated 30.08.2013 Rs. 1,50,000/- paid vide Challan/ cash No. 1565 dated 30.08.2013 Sh Bajranglal G. Agarwal Rs. 50,000/- paid vide Challan/ cash no. 1564 dated 30.08.2013 M/s Kan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han the raw material prices and hence the same is liable to be rejected; that he has not committed any violation of the provision of the Customs Act or any other law and as such cannot be made subject to any proceedings there under, During the personal hearing dated 16.10.19 he stated that he has just processed the Bs/E and his role in undervaluation was not there. that CESTAT in an identical case of Noticee in the matter of M/s Crown Lifters & Madan Lalwani case in C/86415/2014-Mum Mumbai have dropped the penalty. 32.2 I find from the documents on record, statements of other noticees and statements of Shri Madan Lalwani dated 21.10.2010/ 27.10.2010/ 02.11.2010 that Shri. Madan Lalwani admitted that he had advised the importers to declare the value of the old and used cranes at range of Rs. 28/- to Rs. 40/- per kg on the basis of the weight of the crane instead of the correct transaction value. He also filed the Bills of Entry in respect of the impugned cranes on the basis of the manipulated invoices which resulted in the evasion of duty. This aspect was confirmed by Shri Bajrang G. Agarwal in his statement dated 23.11.2010 that he always dealt with Shri Madan Lalwani for cleara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms act, 1962 has already been settled by Hon'ble Supreme Court in case of Surjeet Singh Chhabra V/s Union of India (1997 (89) ELT 646 (SC) stating that 'statements before Customs Officers, though retracted, are binding'. Further, in case of Assistant Commissioner of C.Ex, Rajamundry Vs Duncan Agro Industries Ltd., Hon'ble Supreme Court - 2000 (120) E.LT 280 (S.C) has held that "A statement recorded by customs officers under Section 108 of the Customs Act is admissible in evidence". Thus, find that claim of Shri Madan Lalwani regarding retraction of their statement can not be accepted. find that issue of statement recorded under section 108 of customs act has been dealt in case of (i) Haroon Haji Abdulla Vs State of Maharashtra 1999(110) E.L.T.309(S (ii) K.I.Pavunny, 1997(90)ELT 241 (SC), (iii) Ramesh Khatnani 2008(226) ELT 183 (Raj.) (iv) P.B Nair C&F Put Ltd Vs Commissioner of Customs(General), Mumbai as reported in 2015(318) ELT 437( Tri-Mum) Para 5.5 Evidence Statement Retraction of Confessional statement under Section 108 of Customs Act, 1962- Proceedings under Section 108 ibid is a judicial proceeding and if any retraction of confession to be made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not responsible for import of undervalues goods in the subject matter. Further, I find that involvement of Sh. Madan lalwani in the subject undervalued goods has been proved beyond doubt in the previous paras, therefore the case of M/s Crown Lifters Vs CC (Import), Mumbai which was remanded back to the adjudicating authority for fresh decision is not squarely applicable in the subject case.. It is settled principle of law and has been held by Hon'ble CESTAT of ODIYANDA AYYAPPA MUDDAIAH VIS COMMR. OF CUS., NCH, MANGALORE for Final Order Nos. 20618-20620/2019, dated 6-8-2019 in Appeal Nos. C/21520, 21518 & 21517/2018-SM that "Penalty Smuggling of Contraband Gold Voluntary confessional statements made by all three accused before Customs Officer under Section 108 of Customs Act, 1962- On examination of all material facts and statements, Commissioner (Appeals) rightly concluded that Rajendra Prakash Pawar is key conspirator and mastermind in illegal activity of contraband gold being sole investor of money, sponsoring procurement of contraband gold into India and appellant-I and III aided and abetted illegal activity on payment of hefty remuneration Statements admitting to invol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by M/s Sunrise and M/s Kandla each of Sh Madan Lalwani (In respect of all the 09 cranes listed in Annexrue A to this notice), Mithesh Sethia (in respect of cranes covered under bills of entry listed at Sr.No. 3,4,5,7 and 9 of Annexure "A' to this Notice) and Sh Tavinder Obhan (in respect of Crane listed at St No. 8 in Annexure A to this notice), had deliberately misdeclared the value of the cranes imported which resulted in short levy of Customs duty. 36. All the above stated 9 cranes were cleared in the name of M/s. Sunrise and M/s KCH by adopting fraudulent means as discussed earlier. The bills of entry for clearance of all the aforesaid 9 cranes were filed by Sh Madan Lalwani, who had 'suggested' the values to the importer for raising manipulated invoices. Sh Madan Lalwani had charged an amount of 5% of the value of the crane, in cash, in addition to his agency charges for facilitating such irregular clearances. M/s. Sunrise and KCH and Lalwani acquired possession of and were concerned in removing, selling or purchasing of the aforesaid 9 old and used cranes, which they knew or had reason to believe were liable to confiscation under section 111(m) of the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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