SHRI SUBRAMANYA SHARMA Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THE following appeals have been filed against Order -in -Original No. 42/2004 Cus Adjn (Commr) dated 22.12.2004 passed by the Commissioner of Customs, Bangalore. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Sl Appeal Name of the Duty Penalty (under Fine No No appellant Section 112(a) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 1. C/67/05 Mr S. Sharma Rs 1,00,000/ - 2. C/109/05 Mr B. Praveen Rs 5,00,000/ - 3. C/110/05 M/s Labdhi Rs 43,306/ - Rs 2,00,000 Computech Pvt. Ltd. 4. C/125/05 M/s Labdhi Rs 4,91,230/ - Technologies Rs 74,225/ - Ltd. 5. C/126/05 Sunil Solanki Rs 3,00,000/ - under Section 6. C/132/05 Ramesh Solanki Rs 25,00,000 under Section 112 (a) In the impugned order, the Commissioner has held Shri Ramesh Solanki to be treated as the actual importer in respect of the goods imported vide BE No. 365754 dated 27.9.2002 in the name of M/s Suntech Bangalore. He held that the goods imported under the above Bill of Entry valued at Rs. 14,11,000/ - (as per disposal figures) are liable for confiscation under Section 111(m) of the Customs Act. He has also ordered appropriation of the amount towards customs duty of Rs. 10,37,509/ -. He has confirmed a differential duty amounting to Rs. 95,18,347/ - under Proviso to Section 28(1) of the Customs Act 1962 along with interest Section 28AB ibid for the goods imported during the period from 3.7.2002 to 20.9.2002. He ordered appropriation of the balance amount of Rs. 3,72,499/ - out of Rs. 14,11,000/ - realized on disposal of goods towards the adjudication levied mentioned above. He has ordered that the balance amount of Rs. 91,45,856/ - shall be paid by the appellants (M/s Sun Tech) within 15 days from the date of receipt of the adjudication order. He held that the following goods are liable for confiscation under Section 111(m) of the Customs Act 1962.

(2.) SHRI Varada Rajan learned advocate appeared for Mr. S. Sharma. Shri M.S. Srinivasa, learned advocate appeared for M/s Labdhi Computech (P) Ltd and M/s Labdhi Technologies and Shri Sunil Solanki. Shri B.N. Gururaj learned advocate appeared for Mr B. Praveen. Shri Rajesh Chandra Kumar learned advocate appeared for Shri Ramesh Solanki. Shri K. S. Reddy, learned JDR appeared for the Revenue.

(3.) THE brief facts of the case are as follows: A Bill of Entry 365754 dated 27.9.2002 was filed on behalf of M/s Suntech through CHA, M/s Premier Forwarding Services, Bangalore for clearance of 20 Nos. of Mother board and 200 Nos. of cooler fans on a declared value at Rs. 93,433.69. The goods were assessed to duty of Rs. 40,419/ -. However, before the importer could clear the goods, the customs officers, on receipt of intelligence investigated the matter. Examination of the goods to be cleared under the Bill of Entry mentioned above revealed mis -declaration in quantity and value. Certain goods were in excess and certain goods were less than the declared quantity. A large number of items were undeclared. The total value of the goods amounted to Rs 78,07,090/ -. Follow up action was carried out by the department. The proprietor of M/s. Suntech on paper is one Mr. Praveen, an employee of Shri Ramesh Solanki. Further investigations revealed that Mr Ramesh Solanki floated M/s. Suntech using the name of Shri Praveen as proprietor. Shri Praveen was actually an employee of Mr Ramesh Solanki drawing a salary of Rs. 3,000/ - per month. Mr. Ramesh Solanki was in touch with M/s Guru Electronics from Singapore. In all, 23 consignments were imported in the name of M/s Suntech. The statements of concerned persons were taken. In respect of each consignment there was mis -declaration and import of excess quantity of goods. The goods are mainly motherboards, memory cards and Pentium processors. Several incriminating documents were seized. Searches were carried out in the premises of M/s. Labdhi Technologies and M/s. Labdhi Computech. Imported computed parts without proper documents to prove the licit importation were seized from both the above premises. Mr. Ramesh Solanki was also running Labdhi Computech and his brother Mr. Sunil Solanki claimed to be the Managing Director of M/s. Labdhi Technologies. One Shri P. Subramanya Sharma, an employee of M/s. Premier Forwarding Services helped the appellants for clearance of goods from the Customs. As a result of investigation, a large scale evasion of customs duty by under -valuation of goods declared was detected. There was also evidence of non -declaration. Many incriminating documents such as FAX messages to the foreign supplier were recovered. In this entire episode, it was seen that Shri Ramesh Solanki used the name of Shri Praveen for importing goods in the name of M/s Suntech and selling them in the country. Shri Praveen also obliged Shri Ramesh Solanki in abetting the illegal activity of customs evasion. Revenue proceeded against the concerned persons by issue of show cause notice dated 21st March 2003. The adjudicating authority after following the principles of natural justice passed the impugned order. In the said order, he dealt with the following issues.