TMI Blog2023 (6) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the appellant was involved in the case of M/s. KCH (noticee No.2) on whom finally penalty has been imposed by the Settlement Commission to the extent of Rs.10,000/- only and on Shri Bajranglal Agarwal, partner in the said firm, penalty of Rs.5,000/- has been imposed. The interest of justice will be met if penalty imposed on the appellant under Section 112(a) is reduced from Rs.50,000/- to Rs.1,000/- only and that under 114AA from Rs.1,00,000/- to Rs.5,000/- - appeal allowed in part. - Customs Appeal No. 86012 of 2020 - FINAL ORDER NO. A/85141/2023 - Dated:- 12-1-2023 - HON BLE MR. SANJIV SRIVASTAVA , MEMBER ( TECHNICAL ) Shri D. H. Nadkarni , Advocate , for the Appellant Shri Ram Kumar , Assistant Commissioner , Authorised Representative for the Respondent ORDER This appeal is directed against Order-in-Original CAO No. 20/2020-21 dated 26.08.2020 passed by the Commissioner of Customs (Imp-I), Mumbai. By the impugned order, the Commissioner has held as follows:- ORDER .. (v) I impose a Penalty of Rs. 50,000/- (Rupees Fifty thousand only) under Section 112(a) of the Customs Act, 1962 on Shri. Tanvinder Obhan. (vi) I imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6/- are confiscated and released on a fine of Rs 1,00,000/- Rs. One Lakh only). Immunity is granted to the applicant from payment of fine in excess of the said amount. Penalty : The bench imposes following penalties on the applicant and the co- applicant for their role in evasion of Customs duty. 1. M/s. Kandla Cargo Handlers - Applicant - Rs. 10,000/- (Rs. Ten thousand only). 2. Shri Bajranglal G. Agarwal - Co-applicant - Rs. 5,000/- (Rs. Five thousand only). 2.3 Subsequently against the remaining noticees including the present appellant, adjudication proceedings were initiated after considering the submissions made. The Commissioner has as per the impugned order adjudged the matter against the remaining three noticees. Aggrieved by the order against him, appellant has filed this appeal. 3.1 We have heard Shri D.H. Nadkarni, Advocate for the appellant and Shri Ram Kumar, Assistant Commissioner, Authorised Representative for the Revenue. 3.2 Arguing for the appellant, learned counsel submits:- The show cause notice is barred by limitation as issued after 5 years from the date of import. The Bill of Entry No.726219 dated 27-11-2006 and Show cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cranes as determined by Revenue is based on Chartered Engineer's Certificate which was accepted by Shri Bajaranglal Agarwal, Director (co-applicant) in his statement dated 03.05.2012. The chartered Engineer's certificate had taken into account the applicable deductions and Shri Bajrangllal Agarwal stated that it was more or less in the range of actual value paid by him. He also admitted to have paid cash amount over and above the actual transaction value. Though, he has retracted his statement after a lapse of one month, it is considered to be an afterthought. The Applicant did not produce any documentary proof, evidencing the correct transaction value as claimed by them. The assessable value as revised by revenue also compared favourably with the prices of cranes, offered for sale internationally. The Bench therefore feels that re-determination of value based on the opinion given by reliable and appropriate. 31.1 Further, the Bench also find that the undervaluation done by the Notice No. 1,2 3 i.e. M/s Sunrise Heavy Lifters Pvt Ltd, M/d Kandla Cargo Handlers Pvt Ltd and Sh Bajrang G. Agarwal in this case is substantial as the declared value of Rs. 5,33,63,329/- i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Rs. 5,000/- paid vide Challan No. 1192 dtd 23.08.2013 Thus, I take up the issues to be decided for remaining Noticees Sh Madanlal Lalwani (Noticee No. 4), Sh Mithesh Sethia (Noticee No.5) and Sh Tanvinder Ohban (Noticee No.6) 32. Investigation alleged Shri Madan Lalwani was the main executor of clearing of cranes and he operated under the licence of CHA of M/s. Dharmdas Co (CHA No. 11/100). With the assistance of Shri Madan Lalwani, Shri Bajranglal G Agarwal cleared the imported cranes from Customs by filing manipulated documents, suppressing the actual value of the cranes and declaring the value of the crane in the range of 28 to 40/- per kg of its weight, as suggested by Shri Madan Lalwani. 32.1 Sh Madan Lalwani in his written submission dated 16/10/2019 contended that he is just an employee of M/s.M. Dharamdas Co (CHA) having no control of the operation of CHA; that his statements were recorded by DRI under threat and duress; that his role in the customs clearance was limited to administrative functions alone and he did not have authority to advice clients; that he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also sustainable as his Involvement has been admitted by Shri Bajrang G. Agrawal. Shril Lalwani interacted with the importers on day to day basis pertaining to the above clearances handled by them. Thus Shri Madan Lalwani was aware that substantial loss of duty was caused to the Government on account of mis- declaration in the actual value of the crane resorted to by the importers. 32.3 Further, Sh. Madan Lalwani has contended that DRI officials were not empowered to issue show cause notice under Section 28 of the Customs Act, 1962 prior to 08.04.2011. In this regard, I find that the subject matter has already been dealt in terms of Section 28(11) of Customs Act on 16.09.2011 with retrospective effect. Further, rely upon cases of Konia Trading Co. vs. CC(2004) 170 ELT 51 (CESTAT) wherein it has been held by Hon'ble court that ADG of DRI having been appointed as Customs Collector shall have the powers of a Customs Collector and can discharge functions as 'proper officer' under Section 28(1). We are also of the view in all cases where the officers of DRI are appointed as Customs officers, they will have jurisdiction to discharge functions as a 'proper officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Hon'ble CESTAT in case of M/s Gopalji Heavy Lifters Vs Commissioner of Customs (Import), Mumbai 2016(11) TMI 1516. I find that in the subject case it has been categorically proved on the basis of documentary evidences that import of old and used cranes and accessories were made on fabricated invoices to suppress the actual transaction value of the crane and Sh. Madan Lalwani has played an important role in urging the importers to import old and used cranes and accessories declaring value of the cranes in range of Rs.28 per Kg to Rs.40 per Kg. Further, in addition to Sh. Madan Lalwani, Sh. Bajaranglal G.Agarwal and Sh. Mitesh Sethia, have also get their statement recorded under Section 108 of the Customs Act, 1962 and stated that it was Sh. Madan lalwani who advised and assisted them to import cranes by suppressing the actual value of the same. It is settled principle of law and has been held by Hon'ble Supreme Court in case of Surjeet Singh Chhabra V/s Union of India (1997 (89) ELT 646 (SC) that statements before Customs Officers, though retracted, are binding'. 32.6 Further, Sh. Madan lalwani contended that in an identical case of Noticee in matters of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned cranes imported by M/s. SHLPL (Noticee No.1) and M/s. KCH(Noticee No.2) were sourced by S/Shri Mitesh Sethia and Tavinder Obhan. Both facilitated Shri Bajranglal G Agarwal to defraud the government exchequer, by supplying invoices suppressing the actual price of the cranes imported in the name of M/s. SHLPL and M/s. KCH under Bs/Entry listed at Sr.No.3,4,5,7,8 9 as detailed in Annexure A to the SCN. Shri Mitesh Sethia in his statement dated 21.02.2012 and 21.10.2011 have also admitted that in respect of 5 cranes sourced through him, Shri Bajranglal G.Agarwal has made cash payments towards actual value of cranes and its declared values and admitted to have suppressed the freight component. 34. I find used Coles 45/50 Truck Cranes imported by M/S KCH was sourced by Shri Tanvinder Obhan, partner of M/s.Continental Hiring Co, on high sea basis. Both S/Shri Mitesh Sethia and Tavinder Obhan have also independently imported Cranes by resorting to undervaluation, as admitted, and have deposited 5 Crores and 50 Lakhs respectively, voluntarily, towards duty evaded during the course of investigation in respect of those imports (which is being dealt in a separate proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es found liable for confiscation as discussed above. I hold that Shri Madan Lalwani, Sh Mithesh Sethia and Shri Tavinder Obhan are liable to penalty under section 112(a) of the Customs Act, 1962. 37. Thus, I find that in relation to the aforesaid 9 old and used cranes, Shri Madan Lalwani, Shri Mitesh Shethia and Shri Tavinder Obhan have knowingly and intentionally made, signed or caused to be made or signed and used, the declarations for the purposes of seeking Customs clearance of the aforesaid cranes, which they knew or had reason to believe were false or incorrect. Accordingly, Shri Madan Lalwani, Shri Mitesh Shethia and Shri Tavinder Obhan have rendered themselves liable to penalty under section 114AA of the Customs Act, 1962, in relation to the aforesaid cranes; 4.3 From the impugned order I do not find any discussion on the role played by the appellant in facilitating the charges of suppression of value. The entire discussion is based in respect of one co-noticee i.e. Shri Madan Lalwani. The only finding recorded in the impugned order is in para 35 onwards. Nothing recorded with regard to evidence leading to finding of such discussion. I also take note of the fact ..... 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