C.C. Delhi-Iii vs Becton Dickinson India Pvt. Ltd

[Arising out of Order-in-Appeal No. 328/SVS/GGN/2012 dated 28-09-2012 passed by the CCE (Appeals), Delhi-III, Gurgaon]

C.C. Delhi-iii Appellant

Vs.

Becton Dickinson India Pvt. Ltd. Respondent

Appearance:

Sh. V.P. Batra, DR for the appellant

Sh. Rakesh Kumar Sharma (consultant) for the respondent

Coram: Honble Shri Manmohan Singh, Member (Technical)

FINAL ORDER NO. 50015/2015

The Department has come in appeal against Order-in-appeal passed by the Commissioner (appeal) 382-SVS/GGN-2012 dated 28/09/2012 wherein Commissioner (appeal) dropped the proceedings against the respondents holding that allegation of mis-declaration of value as well as quantity could not be sustained. He consequently dropped confiscation and imposition of penalty.

2. Aggrieved by Commissioner (appeal)s order on review order no. 202014 dated 20/1/2014, Revenue has come in appeal before the Tribunal on the ground that Commissioner (appeal) failed to appreciate the fact that details and description of the goods were available to the importer before arrival of the goods. The difference in quantity could not be detected by them. It has also been stated that there was a huge difference in amount of duty payable and they should have come forward for amendment in Bill of Entry before the examination of goods, which was not done. On that ground, Revenue also taken the ground that though invoice was filed along with Bill of Entry but Commissioner (appeal) failed to appreciate the fact. Invoice also contained the value which should have been correctly declared in the Bill of Entry.

3. Ld. DR reiterated the grounds of appeal taken by the Department and submitted that there has been a mis-declaration on the part of the respondent as despite availability of invoice and packing list, they could not detect the wrong declaration at the time of filing of Bill of Entry. However, he did not dispute the contents of invoice, Bill of Entry and packing list. He referred that under section 46 (4) of the Customs Act, 1962, it is the responsibility of the importers to give declaration that the contents in the Bill of Entry were true to their knowledge and requested for imposition of penalty. He also furnished copies of Bill of Entry, invoice and packing list for perusal of the Bench.

4. On the other hand, ld. Counsel of the respondents submitted that there was a mistake in describing the quantity of their import product which occurred due to ignorance of the staff of the CHA as they could not co-relate the documents and by mistake shown the quantity of 33.38 square meters instead of the actual quantity described of the invoice and the packing list, i.e., 33, 376/- square meter. He also pointed out that due to different connotation used in India and Europe systems and lack of knowledge of the CHS Staff regarding these connotations led to the wrong mentioning of the quantity. However, their bonafide were clear as all correct information was contained in invoice and packing list which was filed along with documents before the Customs Department. He also mentioned that they have been regular importers and have been importing their products at Nava Sheva Port in Mumbai and have been discharging duties to the tune of crores over a year. He also referred to Commissioner (appeal)s Order-in-appeal where he has appreciated the facts and held that there could be no malafide intention to defraud the Revenue.

5. Heard both sides and gone through the documents and Bill of Entry, packing list and invoice to appreciate the facts. I find that Commissioner (appeal) after going through the facts of the case has clearly discussed out in last two paras of his Order and held that since under section 46 (4) of the Customs Act, 1962 importer was required to file invoice in support of the declaration and such document being mandatorily available to the assessing officer, no misdeclaration could be imputed as there was no finding on record that appellant did not file the invoice to the assessing officer or that invoice contained misdeclaration relating to quantity as well as well value. He agreed with the submissions that the clerk of the appellants CHA made the mistake and wrongly interpreted the quantity involved invoices 33.38 square meter instead of quantity of 33,378 square meter due to misunderstanding of the connotation. I have also examined the contention made by both sides and find that no intent to defraud the Revenue is forthcoming. There is a mistake in describing the quantity on the part of the staff handling file of Bill of Entry which was accompanied by the documents indicating the correct quantity and value of the consignment. As such no case for import of excess and consequent demand of differential duty on account of malafide is made. In this regard, I agree with the finding of the Commissioner (appeal).

6. As regards ld. DRs submission that they should have been careful in describing the information as responsibility is cast on them under section 46 (4) of the Customs Act. I find force and feel the ends of justice shall be met if some penalty is imposed on them.

7. In view of Commissioner (appeal)s findings and my findings regarding imposition of penalty, I uphold the order of Commissioner (appeal) as far as it relates to demand of duty and imposition of penalty. However, order is modified to the extent that penalty of Rs. 10,000/- is imposed on them for wrong declaration in bill of entry. I partially allow the departmental appeal. Consequential relief is allowed to the respondent as per provisions of law.

Ordered accordingly.

(Manmohan Singh)

Member (Technical)

RITU

Appeal No. C/51053/2014-CU[SM]