NALIN Z. MEHTA Vs. COMMISSIONER OF CUSTOMS, AHMEDABAD

JUDGEMENT

(1.) These three appeals are disposed of by a common order as the issue involved in all these 3 cases emanates from same impugned order.

(2.) THE relevant facts that arise for consideration are that the officers of DRI Ahmedabad gathered an intelligence that the appellant herein was involved in evasion of anti -dumping duty by resorting to misdeclaration of country of origin in the import of vitrified tiles falling under CTH No. 6907. The investigation was conducted and the authorities came to a conclusion that the appellant herein was importing Chinese vitrified tiles on which anti -dumping duty was leviable. It was also concluded that the Bills of Entry which were filed in the name of M/s. Shobha Plastics Pvt. Ltd., M/s. H.V. Ceramics, M/s. PFZ Corporation were incorrect inasmuch as these three units were dummy. After causing various verifications and recording statements of various persons, show cause notice was issued to the appellant and others for demand of the anti -dumping duty, interest thereof and imposition of penalties. The adjudicating authority, after considering the replies filed by the various persons and the appellant herein and after following the due process of law, confirmed the demands raised along with interest and imposed penalties on various persons. In the first round of litigation, the Bench set aside the impugned order and remanded the matter back to the lower authorities vide Final Order No. A/789 -792/WZB/AHD/2009, by holding that the adjudicating authority cannot confirm the duty and impose penalties jointly and severely against the two persons. The adjudicating authority, in the impugned order, in de novo proceedings, after considering the submissions made by the appellant holding that the appellant is importer, confirmed the demands raised in the 3 show cause notices, ordered for recovery of interest and also imposed equal amount of penalties on the appellant and imposed various penalties on other appellants. We are not concerned with the other assessees/individuals as no appeals have been listed even if they are filed. Hence, we are concerned with appeals filed by Shri Nalin Z. Mehta. 2.1 The ld. Advocate appearing on behalf of the appellants would take us through the impugned order. It is his submission that in Para 31.3.1, the adjudicating authority has held that the appellant herein had planned for import of Chinese vitrified tiles through Malaysia with the help of one Shri Danny of Singapore by forging/obtaining fake certificate of origin from Malay Chamber of Commerce, instructed one Shri Jayesh Mehta to act as CHA and approach M/s. Shobha Plastics Pvt. Ltd. and M/s. H.V. Ceramics for using their IEC code. It is his submission that the adjudicating authority has recorded that all the finances relating to import consignments such as remittance abroad, Customs duty, etc. required for clearances of imported consignments were arranged by the appellant herein; it is his submission that the said findings of the adjudicating authority are totally incorrect and brings to our notice that the statement recorded by the authorities of the appellant on 7 -12 -2006. He would also submit that the entire case of the Department is that the appellant herein having financed for import of consignment of vitrified tiles of Chinese origin and sought to evade anti -dumping duty by creating bogus certificate of origin needs to be tested on the definition of importer as given in Section 2(26) of the Customs Act, 1962. After reading of said definition, ld. Counsel would take us through the case laws which have interpreted the said provision of Customs Act, 1962. He would rely upon the following decisions : - (i) Bimal Kumar Mehta v. CC, Mumbai - 2011 (270) E.L.T. 280 (ii) Dhirubhai N. Sheth v. CC, Bombay - 1995 (75) E.L.T. 697 (iii) Ashwin Doshi v. CCE, Goa - 2004 (173) E.L.T. 488 (iv) J.B. Trading Corporation v. UOI - 1990 (45) E.L.T. 9 (Mad.) (v) Chaudhary International v. CC, Bombay - 1999 (109) E.L.T. 371 (vi) Hamid Fahim Ansari v. CC, Nhava Sheva - 2009 (241) E.L.T. 168 (Bom.) (vii) Proprietor, Carmel Exports & Imports v. CC, Cochin - 2012 (276) E.L.T. 505 (Ker.)

(3.) AFTER taking us through the above said case laws, he would submit that Honble High Court of Kerala, Madras and Bombay have interpreted the definition of importer as given in Section 2(26) of the Customs Act, 1962 as a person who holds out to be an importer or owner. He would submit that on this point itself, the impugned order needs to be struck down, hence we are not making any further observations on various other issues.