DEVADATTA AGENCY Vs. COMMISSIONER OF CUSTOMS, BANGALORE

JUDGEMENT

(1.) THIS appeal arises from Order dated 6 -9 -2005 putting the appellant under suspension in terms of Regulation 21(2) of CHALR, 1984 read with Regulation 20(2) of CHALR, 2004. The appellants had filed Bill of Entries on behalf of a PSU Unit viz. M/s. ITI Ltd., Bangalore on 6 -6 -2005 and 28 -7 -2005. The supplies were made by M/s. ZTE Corporation, China. The Commercial invoice raised by the foreign supplier described the goods as WP805A CDMA Integrated Fixed Wireless Terminal (IFWT) less SMPS with internal battery and battery charger. However, the CHA had described the goods as Model No. WP805A Cellular Telephone WP805A CDMA Integrated Fixed Wireless Terminal (ITWT) less SMPS with Terminal Battery. The allegation against the appellants is that they have incorporated words Cellular Telephone which was not appearing in the Commercial Invoice. Therefore, the appellants have been put under suspension vide Order dated 6 -9 -2005 on the allegation that there is a deliberate mis -declaration of description in the import documents by the CHA as a result of which goods were wrongly assessed duty as Cellular Phones resulting in short levy of Rs. 23,34,125/ -. It has been alleged that this is a case of mis -conduct on the part of the CHA requiring further enquiry and appropriate action in terms of CHALR.

(2.) THE contention of the appellants is that M/s. ITI Ltd. has produced enormous evidence both technical along with specifications to claim the item to be a Cellular Telephone. There is no mis -declaration and this declaration has been done at the instance of the said PSU who have supporting evidence to claim the item to be a Cellular Telephone. They have paid the duty under protest and have taken appropriate legal remedies to substantiate their claim. The appellants contend that the suspension has not been done with immediate effect which is a requirement for putting the appellants under suspension. They are having business of crores of rupees and there was no occasion for them to have indulged in any mis -conduct. It is the submission of the learned Counsel that there has to be prima facie evidence for placing the appellants under suspension. As M/s. ITI Ltd. has placed enormous evidence to claim the item to be a Cellular Telephone, the appellants in no way indulged in an act of mis -conduct. The evidences are also produced before us for verification. It is their contention that the Revenue interest has not been jeopardized. As the suspension has not been done immediately and there is a delay of more than three months, the suspension order is required to be set aside. In this regard, the learned Counsel relies on the following rulings : -

(3.) THE learned SDR opposes the prayer for lifting the order of suspension.