1. These are four appeals filed by (1) M/s. Bharat Brass and Silver Manufacturing Co. (2) Shri Masood Alam, (3) Shri Shahe Alam, & (4) Shri Abul Hasan, being aggrieved by the common order-in-original No. 234/91 dated 7.1.1992 passed by the Addl. Collector of Customs, New Delhi.
Under his order in original dated 7.1.1992 the Addl. Collector of Customs, New Delhi had imposed a penalty of Rs. 20,000/- each on (1) M/s. Bharat Brass and Silver Manufacturing Co. (2) Shri Masood Alam (3) Shri Shahe Alam (4) Shri Abul Hasan and (5) Shri P. Juneja. In addition a redemption fine of Rs. 50,000/-was imposed and it was ordered that the goodsNickel Silver alloy confiscated could be redeemed on payment of appropriate customs duty and the redemption fine of Rs. 50,000/- aforesaid.
1.1. The Appeal No. C/376/92-B2 filed by Shri Abul Hasan had come up before the Tribunal on 5.6.1997 for final hearing. When the matter was called none appeared for the appellant Shri Abul Hasan. In the circumstances the appeal was dismissed under Rule 20 of the CEGAT (Procedure) Rules, 1982 for non-appearance under Final Order No.C/1108/97-B2 dated 5.6.1997. Shri Abdul Hasan had filed an application for restoration of the appeal dismissed in default under Rule 20 of the CEGAT (Procedure) Rules. In the application for restoration of appeal it had been submitted that there was no intentional absence on the part of the appellant and that the notice for hearing on 5.6.1997 was not received by Shri Abul Hasan. After hearing both the sides in the interest of justice we restore Appeal No. C/376/92-B2 to its original number.
1.2. From the Tribunal Stay Order No. C/67 to 71/92-B2 dated 15.12.1992 it is seen that Shri P. Juneja had filed an appeal which was registered as Appeal No. C/371/92-B2. The Registry has reported that the said Appeal No. C/371/92-B2 had already been disposed of under CEGAT Order No. C/1222/97-B2. No application for restoration of appeal had been filed by Shri P. Juneja. With the consent of both the sides the Appeal No. C/376/92-B2 restored to its original number is also taken for disposal along with the other three appeals listed for hearing today.
1.3. As all the four appeals arise out of the same common order-in-original they were heard together and are being disposed of by this common order.
2. The matters were heard on 16.12.1997 when Shri Deepak Gandhi, Adv.with Ms. Promila Kapoor, Adv. appeared for the appellants. Shri S.N.Ojha, JDR appeared for the respondent Revenue.
3. Shri Deepak Gandhi, Advocate referred to the constitution of the partnership firm M/s. Bharat Brass and Silver Manufacturing Co. and submitted that the appellants had placed order for the import of brass scrap turnings and that all the import documents described the goods imported as brass scrap turnings only. The suppliers had sent different goods and as the goods were usable for their purpose they had paid the higher duty demanded even before the adjudication. It was his plea that there was no mala fide on the part of the importers and that there was no ground for imposing any penalty or redemption fine. He also submitted that no statement was obtained of Shri Abul Hasan and that he had no role in the working of M/s. Bharat Brass and Silver Manufacturing Co. He pleaded that that amount of redemption fine imposed was also on the higher side.
4. In reply Shri S.N. Ojha, JDR stated that there was no intentional misdeclaration on the part of the importers/appellants and that misdeclaration had been admitted by the appellants. He referred to the statement of Shri Shahe Alam who was the brother of Shri Masood Ali, the main partner in the firm. Shri Shahe Alam was the Working Manager of the firm. It was his submission that the whole of the organisation including the appellants on whom the penalties had been imposed were involved in the evasion of customs duty. He pleaded that the amount of penalty and redemption fine imposed was fully justified in the facts and circumstances of the case.
5. We have carefully considered the matter. The goods imported were described in the import documents as brass scrap turnings. On investigation and on examination, the goods imported were found to be nickel silver alloy which attracted a higher rate of customs duty as compared to the customs duty leviable on the brass scrap turnings. The goods had been imported through the Indenting agents M/s. British Metal Corporation, New Delhi who had admitted that the imported consignment actually consisted of nickel silver turning as against the declared description of brass scrap turnings. From the facts on record it is seen that the misdeclaration of the description of the goods imported had been resorted to by the suppliers M/s. Stena Metall Trading, Sweden at the request of Shri Abul Hasan. Shri Prem Chand Juneja, Sr.
Commercial Manager, British Metall Corporation India (P) Ltd., in his statement dated 30.4.1990 recorded under Section 108 of the Customs Act, 1962 had stated as under: I have been asked to state the actual description of goods which have arrived in the said consignment covered by invoice No. 7626 dated 5.2.1990. In this regard 1 would like to state that this consignment actually consists of 8 M-tonnes net of Nickel Silver Turnings as against declared description of Brass Scrap Turnings.
This misdeclaration of description of goods has been resorted to by M/s. Stena Metall, Sweden on the request of Shri Abul Hasan of M/s.
Bharat Brass and Silver Manufacturing Co. and M/s. Abul Hasan and Sons, Moradabad.
This manipulation of description of goods in the import documents such as invoice etc. were done at the instance of Shri Abul Hasan.
His request that M/s. Stena Metall should describe goods as Brass Turnings against actual despatch Nickel Silver Turnings was communicated to us on telephone and we in turn telephoned Stena Metall and passed on the instructions of Shri Abul Hassan.
Various documents were seized from the Indenting Agents and the statements of the persons concerned with the import were recorded. It was admitted by the importers that Nickel Silver Turnings had been imported in the guise of Brass Turnings and that the misdeclaration was resorted to, to evade payment of proper duty of customs. In his statement dated 7.5.1990 recorded under Section 108 of the Customs Act, 1962, Shri Abul and the father of Shri Masood Alam the main partner of the importing firm and of Shri Shahe Alam, Working Manager (if the firm and brother of the main partner had admitted the misdeclaration and the contravention of law. He has stated as under: We are ready to pay the difference of duty between Brass Scrap and Nickel Silver Scrap/turnings; regarding 3 shipments covered by seized files 'A', 'C and 'E'. We request that a lenient view may be taken keeping in view our otherwise clean record as an importer and exporter; I being as head of the family own up this responsibility for this minor aberration.
In reply to the Show Cause Notice Shri Abul Hasan had admitted that he had given instructions to Shri Prem Chand Juneja, Sr. Commercial Manager, British Metall Corporation India (P) Ltd. He had explained his role as under: In respect of the allegations, in respect of the import of 8 metric tons of Nickel Silver Turnings allegedly in the guise of Brass Turnings under Bill of Entry No. 111134 of 19.3.1990. I have to state that I had only asked the Indenting Agent M/s. British Metall Corporation to ensure that the material supplied is of proper quality and correct specification including the permitted percentage of various constituents. I have nothing to do in the matter of instructions to the supplier abroad, the packing of the material etc. and its despatch.
6. On the basis of the documentary and oral evidence it was found that M/s. Bharat Brass and Silver Manufacturing Co., Moradabad through their Partners, Working Manager and Shri Abul Hasan, head of the family, by willfully misdeclaring the description with the fraudulent intention to evade payment of proper customs duty had imported Nickel Silver Turnings in the guise of Brass Turnings. Under Notfn. No. 319/88-Cus dated 23.12.1988 (as amended) waste and scrap of Brass attracted a concessional rate of customs duty. From the various messages exchanged between the suppliers, Indenting agents and the importers it is clearly seen that the identity of the goods actually imported had been sought to be concealed with mala fide intention. The messages at Pages 60, 119, 134 and 197 of the paperbook in Appeal No. C/378/92-B2 are extracted below: (1) PRICE MUST REMAIN US060 BECAUSE 7-8 MT TURNINGS PRICED THIS RATE WHICH U DESCRIBING IN DOCS/CONTRACT AS BRASS TURNINGS. (2) HOPE ROLLS ARE NOT TOO BIG AND CAN BE PUT INTO THE DRUM FIRST AND THEN COVERED BY TURNINGS. (3) THESE FOUR DRUMS MUST BE STACKED AWAY FROM THE ONTR DOOR PREFERABLY TOWARDS THE END IN DIFFERENT POSITIONS. ALL 4 DRUMS SHOULD NOT BE TOGETHER. NISI THUS REMOVED FROM THE ONE FOOT MIXTURE OF EACH DRUM CAN BE MIXED WITH HONEY AND SHOULD BE ON THE TOP. THE NISI DRUMS WITH HONEY ON TOP LAYER MUST BE STORED AT THE BACK OF THE CONTAINER AND REMAINING LOOSE HONEY MIXED WITH NISI SHUD BE IN FRONT. KINDLY SEND US FRESH CONTRACTS DESCRIBING MATERIAL SIMPLY AS "BRASS TURNINGS".
SORRY FOR INCONVENIENCE BUT AS BHARAT REQUESTS THIS DESCRIPTION TO OBTAIN DUTY BENEFIT AND QUITE HAPPY AND COMPETENT TO CLEAR NISI BURNINGS AS BRASS BURNINGS" FIRST PACK NISI IN DRUMS BUT ONLY UP TO 75% OF THE DRUM. BALANCE 25% OF DRUM SPACE TO BE FILLED WITH BRASS SCRAP. BRASS SCRAP MUST BE LOOSE AND NISI SCRAP REMAINING AFTER PACKING 75% IN DRUMS MUST BE MIXED UP WITH THE LOOSE BRASS SCRAP.These messages clearly indicates the mala fide intention of the importers to conceal the true identity of the goods with a view to evade payment of customs duty.
7. The goods had been provisionally released under guarantee on the request of the appellant and on payment of the extra duty demanded at the applicable rate. Shri Abul Hasan in his reply to the Show Cause Notice had stated as under: It may also be submitted that I advised my son to pay the extra duty demanded at the higher rate amounting to Rs. 88650 of their own and without formal demand. This fact may be kept in consideration while deciding the case.
8. The business was run as a family concern. Shri Abul Hasan was the partner of M/s. Abul Hasan and Sons and was the father of Shri Masood Alam the main partner and that of Shri Shahe Alam the working Manager.
Shri Masood Alam was responsible for day-to-day work of the firm. Shri Shahe Alam was the brother of Shri Masood Alam and Smt. Azara partner was the wife of Shri Shahe Alam. Other partners were the ladies of the family.
9. The modus operandi as revealed by the exchange of communications as extracted above establishes the mala fide intention of the appellants.
The contravention of the law had been admitted by Shri Shahe Alam and by Shri Abul Hasan in their statements recorded under Section 108 of the Customs Act, 1962. The activities of the firm were being run as a close family concern and the person concerned had indulged in and had abetted the contravention of the law. They were individually and separately were concerned with the contraventions as alleged in the Show Cause Notice. The differential duty involved was of Rs. 88650.
10. In view of the above discussion and in the facts and circumstances of the case we do not find any ground to interfere with the order passed by the adjudicating authority in these proceedings. We do not find any merit in all these four appeals and the same are rejected.