TMI Blog2005 (12) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Revenue that the bank attested invoice is a fake. Therefore, we are of the view that in respect of the last consignment, a value of 6.5 US $ per Sq metre can be adopted. Anti-dumping duty in terms of Notification No. 73/2003-Cus., has been demanded. It is seen that when these consignments were imported, the provisional Anti-dumping duty imposed on the goods had already lapsed. This Tribunal in the case of Commissioner of Customs Cochin v. Raghav Enterprises in the Final Order 1290-1291/2005, dated 28-7-2005 has held that when the goods are imported after the provisional Anti-dumping duty notification lapses, no Anti-dumping duty can be levied retrospectively in respect of the goods on the basis of the notification levying Anti-dumping duty. The Anti-dumping duty provisionally imposed under Notification No. 50/2002, was effective till 1-11-2003. The consignments were imported during December, 2002 and January-April 2003. During the above period no provisional Anti-dumping duty was leviable. Hence, during this period, Notification No 73/2003 Cus., cannot be applied retrospectively. Hence, the order concerning Anti-dumping duty in Para g of the Order portion in the impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Customs, Bangalore. Sl. No. Appeal No. Parties Name Value of Goods Duty/Fine Penalty 1. C/399/04 M/s. G.M. Exports v. CC, Bangalore Rs. 68,83,437/- Differential 35,22,296/- Anti-dumping 1,10,26,340/-Redemption Fine 10,00,000/- Rs. 35,22,296/-[114A of the Customs Act] 2. C/400/04 Shri Anil Kothari v. CC, Bangalore Rs. 10,00,000/-[112(a) of the Customs Act] 3. C/431/04 M/s. Ganesh Shipping Agencies v. CC, Bangalore. Rs. 2,00,000/-[112(n) of the Customs Act] 4. C/267/05 CC, Bangalore v. M/s. G.M. Exports 2. M/s. G.M. Exports, a partnership firm imported three consignments of ceramic tiles through Bangalore. The main allegation against them is mis-declaration of quantity and value of the imported tiles. There is also allegation against the Customs House Agents M/s. Ganesh Shipping Agency with regard to tampering of documents. Some Customs officers appeared to have abetted them in the tampering of the documents. The DRI investigated the entire case and proceedings were initiated. Consequent to the proceedings against the various parties, the adjudicating authority passed the impugned order. The appellants have strongly challenged the findings of the adjudicating authority. The offend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been done, therefore the impugned order is passed without application of mind. (v) The Commissioner rejected the transaction value of US $ 5.50 per square metre under Customs Valuation Rules, 1988 and enhanced the value to US $ 8.5 under Rule 8 without letting any evidence. He has not appreciated the fact that the appellants had already imported large consignment from the same supplier and therefore, the foreign supplier had offered them discounted price because of the large quantity. Further, in the third consignment, quantity imported was larger than the earlier two consignment. Further the statement of Shri Anil Kothari confirms the correctness of the price of US $ 5.50 charged by the foreign supplier. (vi) In terms of Supreme Court's ruling in Eicher Tractors Ltd. case reported in 2000 (122) E.L.T. 321 (SC) transaction value cannot be rejected in the absence of the circumstances mentioned in Rule 4(2) of the Customs Valuation Rules. (vii) The Commissioner upholds US $ 8.50 per sq. metre based on contemporaneous imports of similar goods but Rule 5 or 6 of the Valuation Rules was not applied and was not referred in the show cause notice. But valuation has been proposed u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisional duty in terms of Rule 21(1) of the said Rules, where the final duty is higher. The learned advocate relied on the following case laws of this bench in respect of the (i) CC, Cochin v. M/s. Akash Trading Co. vide Final Order No. 1508, dated 18-8-2005 [2005 (189) E.L.T. 246 (T)] (ii) CC, Cochin v. M/s. Orient Impex M/s. Raghav Enterprises vide Final Order No. 1290 1291 dated 28-7-2005. [2005 (189) E.L.T. 461 (T)]. (xi) In this case since no provisional duty was imposed on the date on which final duty was identified, the final duty could not have been imposed retrospectively and as provisional duty was charged as per Rule 21(1) the difference between higher final duty and the lower provisional duty cannot be levied and collected. (xii) According to Rule 20(2)(a) final duty can be levied retrospectively only when provisional duty has been levied. Since there was no provisional duty after 1-11-2002, final duty would not have been levied retrospectively. (xiii) The penalty under Section 114A of Customs Act is not justified, as there was a general practice to send higher quantity because of breakages and damages in transit, in view of the fragile nature of the goods. (xiv) In r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Several case laws have held that to hold a CHA for penalty, it is essential to establish that they had prior knowledge. (a) U. Sivasubramanian v. CC, Trichy reported in 2004 (165) E.L.T. 97 (Tri.-Chennai) - Relying on various judgment it has been held There was no allegation that the appellant (a CHA) had knowledge and he had abetted the committal of the offence. The Bench further observed Some degree of knowledge of contravention of law on the part of the abettor must be shown for imposition of penalty under Section 112 of the Customs Act . (b) Vetri Impex v. CC, Chennai reported in 2004 (172) E.L.T. 347 (Tri.-Chennai). (c) V. Esakia Pillai v. CC, Chennai reported in 2000 (138) 802 (Tri-Chennai). (vii) The acts of the appellants employees behind their back without authorization do not render the goods liable to confiscation. As the goods had already been rendered liable to confiscation, when the bill of entry was filed. It is not the Department's case that the substituted documents showed size lower than what was found on examination or what was declared initially in the bill of entry. The total area/value remain the same as declared initially in the bill of entry. (viii) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the tiles as 500 500. But during the examination, the dimensions were 600 600. The main person concerned with the import of the tiles is Shri Anil Kothari. In his statements given under Section 108 of the Customs Act, he has admitted the mis-declaration in respect of the goods imported under the three bills of entry. The Commissioner has given a very detailed finding with regard to the mis-declaration of quantity. For example, with respect to Bill of Entry dated 28-12-2002, the declared quantity is 3745.28 Sq Metres but the investigation reveals a quantity of 7721.28 Sq metres. In respect of Bills of entry dated 2-1-2003. The declared quantity is 4280.32 Sq. metres whereas the quantity actually imported is 8834.32 Sq metres. In respect of the last consignment imported vide Bill of Entry dated 5-4-03 the declared quantity is 5662 80 Sq metres, whereas the actual quantity is 11094.60 Sq. metres. In the last consignment, it was revealed that the tiles actually imported were not of the same dimensions as per the declaration. Shri Anil Kothari also has categorically accepted this position in his statements. Hence, we are of the view that the mis-declaration in respect of quantity as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, according to which the provisional duty would be in force only for a period not exceeding six months which may upon request of the exporters representing a significant percentage of the trade involved could be extended by the Central Government to 9 months. Further he referred to Rule 20(2)(a) which states as under : 20. Commencement of duty. - (2) (a) where a provisional duty has been levied and where the designated authority has recorded a final finding of injury or where the designated authority has recorded a final recording of threat of injury and a further finding that the effect of dumped imports in the absence of provisional duty would have led to injury, the Anti-dumping duty may be levied from the date of imposition of provisional duty . He said a harmonious reading of Rule 13 and Rule 20 would reveal that provisional Anti-dumping duty would have validity only for 6 months. But on request of the exporters, it can be extended to 9 months. In the present case, there was no extension of the provisional Anti-dumping duty at all. When the goods were importe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o bills of entry is also upheld. The demand of differential duty of Rs. 9,04,162/- and Rs. 10,64,383/- in respect of the first two bills of entry are upheld. The confiscation of 8119.84 Sq metres of vitrified tiles seized from various godowns of M/s. G.M. Exports under Section 111 (l) and 111 (m) of the Customs Act is upheld. The imposition of redemption fine of Rs. 10 lakhs on the above goods is upheld. The penalty imposed under Section 114 (a) of the Customs Act is reduced to Rs. 7 lakhs only taking into account the fact that the appellants paid an amount of Rs. 20 lakhs and executed a Bank Guarantee of Rs. 18 lakhs during the course of investigation of the case. 11. The OIO is modified as indicated above as far as the appellant M/s. G.M. Exports are concerned. 12. C/400/04 - Shri Anil Kothari v. CC Bangalore : The Commissioner in para 178 of the Order-in-Original has dealt with the role of Shri Anil Kothari which is reproduced below : I do not find any serious challenge to the findings of the Commissioner from the appellants hence, the liability of Shri Anil Kothari to penalty under Section 112 (a) is upheld. However, in the facts and circumstances of the case, we reduce the pen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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