Decided on August 28,2015

Bosch Chassis Esystems India Ltd. Appellant
Commr. Of Cus., New Delhi (Icd Tkd) Respondents

Referred Judgements :-



SULEKHA BEEVI C.S., J. - (1.)The allegation against appellants is that they mis -declared the quantity of goods imported. The appeals though arising out of separate orders are connected, as they arise upon the same facts/incident. Appeal No. E/53392/2014 -CU(SM) is filed by the importer and the other two appeals are filed by the authorized representatives of the CHA, M/s. Schanker India (P) Ltd. Therefore they were heard together and are disposed by this common order.
Brief facts are as under:

M/s. Bosch Chassis Esystems India Ltd., the appellant in C/53392/2014 -CU(SM) imported Hydraulic Oil Brake Hose. They filed Bill of Entry (B/E), dated 17 -11 -2011 and commercial invoice dated 27 -9 -2011 through their CHA, M/s. Schanker (I) Pvt. Ltd. declaring import of 40,000 meters of Hydraulic Oil Brake Hose. On examination of the consignments by officers of SUB, it was found that the quantity of the goods imported was 90,000 mts., and not 40,000 mts. as declared in B/E. It is the case of appellant that for the said consignment, the shipper had actually raised two invoices bearing Nos. 2011927 and 2011920 for the quantity of 40,000 mts. & 50,000 mts. respectively. That when the invoices were scanned & mailed to the appellants, by the shipper, instead of these two separate invoices, the shipper had scanned invoice No. 20110927 (for 40,000 mts.) twice. Thus instead of receiving two separate invoices, they had received two copies of the same invoice. This invoice was forwarded to the clearing agent who filed the B/E through the EDI System. On coming to know that there was excess import of 50,000 mts. they sought clarification from the supplier. The supplier acknowledged the mistake that the second invoice for 50,000 mts. was missed out while scanning and that the invoice for 40,000 mts. was scanned twice. The supplier also issued a certificate acknowledging the mistake. Thereafter, on request of the appellant the goods were released provisionally on execution of bond. The differential duty of Rs. 8,78,874/ - was also paid. A show cause notice was issued to appellants which was finalized by passing the order dated 30 -4 -2013 which ordered confiscation of the goods and imposed redemption fine of Rs. 15,00,000/ -. The duty and differential duty paid was ordered to be appropriated. A penalty equal to the differential duty (Rs. 8,78,874/ -) was imposed on M/s. Bosch Chassis India Ltd. under Sec. 114A. Besides this penalty of Rs. 2,00,000/ - was imposed under Sec. 114AA. A separate penalty of Rs. 1,00,000/ - was imposed on Shri Vijay Kumar Mullankara, authorized representative of M/s. Bosch Chassis India Ltd. A penalty of Rs. 1,00,000/ - was imposed on Shri Gagandeep Singh authorized representative of CHA, M/s. Schanker (I) Ltd. under Sec. 112(a) and also further penalty of Rs. 1,00,000/ - under Sec. 114AA. Similarly penalty of Rs. 1,00,000/ - was imposed on Sh. Satendar Singh, authorized representative of CHA, M/s. Schankar (I) Ltd. under Sec. 112(a) and a further penalty of Rs. 1,00,000/ - under Sec. 114(AA) for assisting and handling clearance in respect of the B/E. The appellants filed appeal before the first appellate authority. The Commissioner (Appeals) vide impugned order dated 17 -2 -2014 upheld the order passed against M/s. Bosch Chassis System India Ltd., but dropped the separate penalty imposed on Vijay Kumar Mullankara. The Commissioner (Appeals) vide order dated 17 -12 -2013 modified the penalty imposed upon Shri Gagandeep Singh & Shri Satender Singh under Sec. 112(a) and the penalty was reduced from Rs. 1,00,000/ - to Rs. 15,000/ -. The penalty imposed on them under Sec. 114AA was dropped. The above orders dated 17 -2 -2014 and 17 -12 -2013 are under challenge in these appeals.

(2.)The learned counsel appearing for the appellants urged that the whole issue arose only due to an inadvertent error in dispatching the same invoice twice. That the mistake was not intentional. That the mistake happened only due to the shipper's mistake, who scanned the same invoice twice instead of scanning the separate invoices of different quantity. He drew our attention to the contents of Bill of lading in which the quantity of goods is seen to have been correctly stated. He also relied upon the letter issued by the shipper acknowledging the mistake and mentioning the quantity that was shipped. Fortifying his arguments he relied upon the judgment of the Tribunal in Escorts Ltd. v/s. Commissioner of Customs Delhi - : 2000 (122) E.L.T. 576 (Tri. -Delhi). It was further submitted that imposition of penalty under Sec. 114AA was totally unwarranted. The penalty imposed under this Sec. 114AA upon Sh. Satender Singh and Sh. Gagan -deep Singh has been dropped by the first appellate authority. However, the penalties imposed upon M/s. Bosch Chassis Ltd. both under Ss. 114A and 114AA of the Customs Act were upheld by the impugned order. The learned counsel argued that penalty under Sec. 114A cannot be imposed as there was no mala fide intention or willful misrepresentation and that quantity was declared incorrectly only due to mistake. Further, that penalty imposed on M/s. Bosch Chassis Ltd. under Sec. 114AA is wholly unwarranted. That penalty under this provision can be levied only in those situations where export benefits are claimed without exporting the goods and by presenting forged documents. The learned counsel adverted to the discussion of the Twenty Seventh Report of Standing Committee of Finance to elucidate the intention of inserting this Sec. 114AA. It is seen stated therein, that new Sec. 114AA has been proposed, consequent to the detection of several cases of fraudulent exports which were shown only on paper and no goods crossed the Indian border. According to the counsel the mis -declaration in the instant case, happened only due to inadvertent error.
(3.)Refuting the contentions of the appellant, the learned DR, strenuously argued that there is mis -declaration of quantity of goods by the appellants. The Bill of lading shows total number of packages as 18 pallets and gross weight as 9,360 and serial number of two invoices is also mentioned. But in the B/E only one invoice was shown and duty was deposited only for this invoice. That there is deliberate attempt on the part of importer to evade duty and the CHA has connived for such act. He supported the impugned order and argued that the Commissioner (Appeals) has given sufficient remission of penalty besides dropping the penalty under Sec. 114AA imposed on the representatives of CHA. That there is no infirmity in the impugned orders.

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