Full Judgment
a) M/s Tripasa Industries Ltd., Hongkong sent a consignment describing it as Polyester Woven Fabrics valued at about Rs. 45 lakhs and the importer was M/s Add International, Gandhidham. The consignment came in Oct.'02 but the original importer did not file Bills of Entry for a long time. The present appellant held negotiation with M/s Tripasa Industries for purchase of the imported consignment but lying uncleared and filed application for transshipment permission in Feb.'03 to transfer the consignment to Nhava Sheva. The transshipment permission was refused by the Assistant Commissioner vide his order dt. 4.6.2003 but the new importer was permitted to file Bill of Entry and clear the goods at Kandla Prt itself.
b) There were lot of correspondence and litigation in relation to these consignments, which were not relevant for deciding the present appeal.
c) They requested for re-shipment of the consignment to the original exporter namely Tripasa Industries by their letter dt. 16.6.2003, which was not acceded to.
d) When the consignment was actually examined in May, 2004, it came to the light hat the consignment was actually PFY and not PWP and the value was Rs. 2,21,42,585/- much higher than the value indicated in the consignment by the shipper.
e) The Commissioner upheld the charge of mis-declaration and undervaluation and absolutely confiscated the goods, as the shipper abandoned the goods and imposed penalties on various parties and in particular imposed the penalty of Rs. 8 lakhs on the appellant.
4. The learned advocate for the appellant submits that the appellant had no knowledge of mis-declaration of description and value by shippers; there was no statement recorded from the appellant. The findings that the appellant had colluded with the shipper of Hongkong were not based on any facts; at any rate the appellant had not filed Bill of Entry and no allegation of mis-declaration could be made against the appellant.
5. The learned SDR supports the imposition of penalty and draws my attention to the role of the present appellant mentioned in the show cause notice and also to the findings of the Commissioner which are as follows: Thus, it is seen from the above sequential facts that the goods that were originally shipped to a purported buyer in India (AIG) by declaring them as '100% Polyester Woven Fabrics (dyed)' at a rate of USD 0.67 per yard were deliberately not cleared by the said buyer.
The foreign supplier then created certain documents including invoices (bearing same numbers and dates as those that were issued to AIG) favouring WTPL to manipulate the price so as to facilitate the clearance at a lower price of USD 0.48 per yard. This brings forth the fact that there had been an attempt for mis-declaration of value which cannot be overlooked though it is a different issue that due to certain trade rivalries and disputes, the goods were never sought to be cleared by either of the parties. The facts that TIL raised invoices bearing same numbers and dates on both TIL and WTPL showing different prices for the same goods clearly establish that there was a deliberate attempt to mis-declare the value with a purpose to evade customs duty.
6. I have carefully considered the submissions from both sides. The issue to be decided in the present appeal is as to whether the present appellant had knowledge of mis-declaration of description, value of the consignment supplied by M/s Tripasa Industries, Hongkong and whether the present appellant intentionally did or omitted to do certain things which made the consignment liable for confiscation. It is to be noted that original importer was M/s Add International, Gandhidham. The import has taken place in Oct.'02. If there was a mis-declaration of the description and value as held by the Commissioner, the same is there at the time of importation itself and the blame, if any, may require to be shared between the supplier and the first importer.
7. The present appellant has entered the scene at a later point of time and claims that he has no knowledge of the mis-declaration of the description and value by the supplier. It was also submitted by the ld advocate for the appellant that no statement was recorded from the appellant. This has not been contravened neither the supplier nor first importer nor anybody else as given in statement attributing knowledge or intention on the part of the present appellant which leads to confiscation of the imported consignment.
8. The allegation in the show cause notice as well as the findings of the Commissioner in so far as the present appellant are concerned, do not throw any evidence based on which a conclusion that the present appellant was party to the mis-declaration of the description/value as held by the Commissioner can be sustained. The findings that the supplier created certain documents including invoices bearing same numbers and dates as of those which were issued to original importer also do not throw any light on the roles of the present appellant.
There could be some suspicion that the present appellant may be aware, but this suspicion cannot take place of evidence.
9. As already noted, no statement has been taken from the present appellant seeking clarifications on his role.
10. In the light of above, the Commissioner's findings about the involvement of the present appellant in mis-declaration of the description, value and consequent imposition of penalty cannot be sustained.
11. It is clarified that the observations on issues like liability of the goods for confiscation, role of other parties in relation to the import of these consignments are by way of narration based on the findings of the commissioner and has not been considered by the Tribunal in this appeal.