M/S. Suj Impex vs Commissioner Of Customs (Exports), ...

[Arising out of Order-in-Original No.1196/2003, dated 29.07.2013 passed by the Commissioner of Customs, Madras]

M/s. SUJ IMPEX APPELLANT

Versus

COMMISSIONER OF CUSTOMS (EXPORTS), CHENNAI RESPONDENT

Appearance:

For the Appellant Shri R. Alwan, Adv.

For the Respondent Shri M. Rammohan Rao, DC (AR)

CORAM:

Honble Shri D.N. Panda, Judicial Member Honbe Shri R. Periasami, Technical Member

Date of hearing/decision 15-04-2015

FINAL ORDER NO. 40437 / 2015

Per D.N. Panda:

Appellant imported following three types of goods through different bills of entries during the period from 25/11/1998 to 12/04/2001 declaring the value of per unit weight of goods ranging from Rs.400/- for the year 1998 to Rs.250/- in respect of Mar.01 to Apr.01 [Ref: details at page nos.60  61 of appeal folder:] with noticeable decline of the value in subsequent years:

(a) Secondary/defective CRGO electrical steel sheet cuttings/ Strips in irregular shapes and sizes; (b) Secondary/defective CRGO turns and bends in coiled form;

(c) Secondary/defective blackish brittle CRGO small sheet cuttings in irregular shapes and sizes,

2.1 Learned Advocate for Appellant submitted that the statement recorded on 28.06.2000 and used against the appellant in adjudication subjected to appeal no.C/42271/2013 disposed today by a separate order, was also used in the present adjudication in question.

2.2 An uniform value was adopted by Adjudicating authority to asses each clearances for the entire period covering 20 bills of entry. Same value of USD 485 was adopted as assessable value. That has caused prejudice to the appellant. When there were three types of goods imported, the authorities should not have adopted same value for all the goods. The goods being quite different from each other did not command same value for each consignment and also due to peculiar nature of the goods covered by each consignment, there cannot be application of same value to all consignments. However, appellant without waiting cleared the goods paying differential duty and also redemption fine.

2.3 It was further submitted on behalf of appellant that when the consignment involved in appeal nos.C/42271/2013 was alleged to be under-valued, past consignments of 1998-2001 were brought to adjudication which is subject matter in the present appeal. For no good reason, relying on the same deposition as it was relied in adjudication covered by appeal No.42271/2013 appellant was exposed to arbitrary adjudication in the present case.

2.4 It was also argued that there was no basis for the department to issue notice under Section 28 of the Customs Act, 1962, when the consignments were allowed to be cleared and no composition of the goods as well as description thereof was questioned. So also no sample was collected by Customs to test the goods technically. Therefore, the adjudication fails both on merit and technicality of goods imported from time to time with different values, sizes, nature and quantity.

3. Revenue, on the other hand submits that the appellant colluded with the exporter on the plea of sustaining of the losses on the imports of past to make under-valuation thereof. This is very clear when answer to question nos.8 & 9 of the recorded evidence from Shri Dinesh Jain appearing at page nos.68-70 of the appeal folder is read. Appellant vividly explained questionable modus operandi followed by it requesting the exporter to under-value the goods. Appellant even admitted that in two cases stating there was deliberate under-valuation of the goods. Therefore, fraudulent declaration made by it invited not only duty liability on differential value but also penalty under Section 114A of the Customs Act, 1962 was imposable with redemption fine.

4. Heard both sides and perused the records.

5. We are conscious that a statement recorded in one proceeding shall not be utilised against the author thereof in another proceeding. But here is a case, where answer to question no.8 of the deposition, throws light that the appellant himself submitted to the proceeding stating clearly that it made first import in 1998 and very elaborately explained the questionable modus operandi followed consciously misdeclaring the value bringing close proximity to the present proceedings as well as the case which was covered by appeal no.C/42271/2013 decide separately today. Therefore, in the absence of any contrary evidence to dispel the statement recorded in the case relating to appeal no.C/42271/2013, it is difficult to discard plea of Revenue that the deposition appearing at page nos.68-75 of appeal folder has bearing to the present case also. We have already stated in the decision taken today in the other appeal as stated above that the Customs officer not being a Police Officer as has been held in the case of Romesh Chandra Mehta Vs State of West Bengal reported in 1999 (110) E.L.T.324 (S.C.), the statement recorded by them cannot be brushed aside. Appellant brought out history of the imports and its collusion with the exporter to make under-valuation of imports so as to cover up its losses of past at the cost of Customs.

6. The answer to question no.8 of the deposition recorded clearly brings out appellants malafide of under-valuing the goods in association with the exporter. Appellant having been unjustly enriched at the cost of Customs, it is difficult to disturb any finding in the adjudication. Therefore, levy of duty is confirmed even looking to the trend of the value declared by the appellant, which was higher in the year 1998 but significantly lower in the year 2001 against similar imports of future.

7. Appellant failed to bring out that goods of different types commanded different values in the market and it has truthfully declared transaction value against each import. Law is well settled that when collusion surfaces demonstrating misdeclartion of value to Customs, that should be rejected and Customs is at liberty to determine the proper assessable value. When appellant did not rebutt the valuation made by Customs leading any cogent evidence to the contrary to show that the price in the year 2001 has gone down in the global market compared to the price prevailed in the year 1998, it does not deserve any consideration on the count of valuation.

8. So far as imposition of redemption fine is concerned, appellant submitted that the imports being of past and already cleared levy of redemption fine is uncalled for. There is no difference to such proposition. Accordingly, redemption fine is waived.

9. So far as levy of penalty is concerned, when the authority found that there was deliberate misdeclaration due to collusion of the appellant and the exporter and appellant was enriched at the cost of Customs, he imposed penalty to the extent of equal amount of duty under Section 114A of the Customs Act, 1962. In absence of bonafide of the appellant, it is not at all possible to interfere to that aspect of the adjudication. Therefore, penalty imposed is confirmed.

810. In the result, appeal is allowed partly to the extent of waiver of redemption fine, confirming duty and penalty.

(Dictated and pronounced in open court)

(R. PERIASAMI) (D.N. PANDA) TECHNICAL MEMBER JUDICIAL MEMBER

ksr 20-04-2015

DRAFT Remarks

I II III

Date of dictation 15.04.2015

Draft Order - Date of typing 16.04.2015 17.04.2015

Fair Order Typing 20.04.2015

Date of number and date of dispatch

7 C/00381/2003