COMMISSIONER OF CUSTOMS Vs. S.K. PETROCHEM

JUDGEMENT

(1.) THIS order shall dispose of CUSAP Nos. 8, 9 and 11 of 2014 as learned counsel for the parties are agreed that the issue involved in all the three appeals is identical. CUSAP Nos. 9 and 11 of 2014 relate to M/s. S.K. Petrochem whereas CUSAP No. 8 of 2014 pertains to M/s. Golden Enterprises. However, the facts are being extracted from CUSAP No. 9 of 2014. CUSAP No. 9 of 2014 has been preferred by the Revenue under section 130(1) of the Customs Act, 1962 (in short "the Act") against the order dated July 24, 2013 (annexure A -2) passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as "the Tribunal"), claiming the following substantial questions of law:

(2.) BRIEFLY , the facts necessary for adjudication of the controversy involved as narrated in CUSAP No. 9 of 2014 may be noticed. The Delhi Zonal Unit of the Directorate of Revenue Intelligence (DRI) had initiated investigations into imports of certain petro -chemical products being imported at ICD, Ludhiana. It was found that the imports were being made, inter alia, in the name of M/s. S.K. Petrochem, C -1/4, Krishna Vihar, New Delhi and M/s. Golden Enterprises, A -63, Deepak Vihar, Vikash Nagar, New Delhi. Acting on the above intelligence, searches were conducted on January 28, 2013 by the officers of the Directorate of Revenue Intelligence at the residential premises of Shri Mukesh Kumar Gupta, declared to be the proprietor of M/s. S.K. Petrochem situated at A. 20, Milap Nagar, Uttam Nagar, New Delhi. During the search, various incriminating documents, digital devices were recovered from the premises of Shri Mukesh Kumar Gupta. During another enquiry, the officers of the Customs Preventive Commissionerate Delhi searched the premises of M/s. S.K. Petrochem on August 29, 2013 and drawn a panchnama on the spot. As per the panchnama, no firm by the name of M/s. S.K. Petrochem existed there and further that they used to be at that premises six to seven years ago. Thus, the imports had been made by the third parties using either a front company or a non -existing company. During investigation, four consignments imported by M/s. S.K. Petrochem, New Delhi and two by M/s. Golden Enterprises were examined at ICD, Ludhiana. In all these consignments, the goods were declared as pressed distillate oil. Representative samples were drawn for testing to find out the actual description of the goods. To avoid detention charges and demurrage, an option for warehousing of the goods was given to the importer on the date of examination itself. The samples were sent to the Central Revenues Control Laboratory (CRCL), New Delhi to ascertain the actual composition of the goods. Upon testing, the Central Revenues Control Laboratory reported that all the samples except the one at Sl. No. 3, i.e., bill of entry dated January 19, 2013 had the characteristics of base oil. The sample pertaining to the bill of entry at Sl. No. 3 was found to have the characteristics of lubricating oil, which is base oil in which additives have been added to make it suitable as a lubricant. Thus, all the imported goods were found misdeclared. Since there was an attempt to evade duty, the goods were confiscated under the Act. The respondent requested for provisional release and the adjudicating authority vide the order dated April 23/25, 2013 (annexure A -1) provisionally released the goods on certain conditions. Feeling aggrieved, the respondent filed an appeal before the High Court of Delhi which was dismissed. The respondent then filed an appeal before the Tribunal. The Tribunal disposed of the appeal vide the order dated July 24, 2013 (annexure A -2) directing the release of the goods provisionally subject to the deposit of 20 per cent, differential duty as sought to be assessed by the Department and upon execution of bond for full proposed value of the consignment. Hence, the present appeals by the Revenue.

(3.) ON the other hand, learned counsel for the respondent submitted that no such plea had been raised before the Tribunal and in such a situation, the Revenue was precluded from taking the plea before this court. In the alternative, it was submitted that in case the matter was being remitted for fresh decision, then time -bound direction may be issued to the Tribunal for adjudicating the issue as the goods are likely to be affected. Similar plea was raised by learned counsel for both the parties in respect of M/s. Golden Enterprises in connected appeal, i.e., CUSAP No. 8 of 2014.