Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

Comments

Print   |    |  Comment

PJ/CASE LAW/2014-15/2314

Whether CHA is liable for penalty for misdeclaration of imported products?

Case:- INDO FOREIGN (AGENTS) PVT. LTD. Versus COMMR. OF CUS. (AP & ADMN.), KOLKATA

Citation:- 2012 (279) E.L.T. 258 (Tri.- Kolkata)

Brief facts:- Brief facts of the case are that one M/s. Shiv Shakti Enterprises had imported a consignment of 800 pieces of Decoder PCB for CD Player (unbranded) on 26-2-2004 through ACC, Kolkata. The consignment was intercepted after clearance by DRI on the ground that the goods were actually MPEC cards and that the ores described in the Bill of Entry. Investigation was conducted subsequently and it revealed that the real importer was not the proprietor of M/s. Shiv Shakti Enterprises but one Shri Arsh Kumar who is concerned with the import, has not filed appeal before Tribunal. There are two appellants, one is CHA firm and another an employee, Shri Biswajit Bhowmick (second appellant). Penalties have been imposed on CHA firm and on the second appellant under Section 112(a) of the Customs Act, 1962 on the ground that they had abetted for the importation, misdeclaration of the goods and clearance of the same through Customs.

Appellant’s contention:- The learned Advocate for the CHA Firm submitted that the Director of CHA had fairly stated in reply to the show cause notice and in response to summons to which he had relied upon that the CHA firm had only done the work of clearing of goods and neither he nor his employee was aware of the fact that what was being imported was MPEG card.
The ld. Counsel for Shri Bhowmick relied upon the decisions in the cases of A.P. Sales v. Commissioner of Customs, Hyderabad reported in 2006 (198) E.L.T. 309 (Tri.-Bang.) and Commissioner of Customs, Mumbai v. M. Vasi reported in 2003 (151) E.L.T. 312 (Tri.-Mumbai.) to submit that awareness about the improper importation and the benefits arrived therefrom should be there. In this case, immediately at the time of investigation, Shri Bhowmick has submitted that he was not aware about any deliberate mis-declaration. He has said so. But the subsequent statement also does not reveal what was extra benefit derived for the risk taken by CHA and Shri Biswajit Bhowmick and further there is no corroboration by the importer, Shri Arsh Kumar. Further, the ld. Counsel for Shri Bhowmick also relied upon the decision of the Hon'ble High Court of Gujarat in the case of Motilal Lalchand Shah v. L.M. Kaul and another reported in 1984 (17) E.L.T. 294 (Guj.) to submit that an improved statement recorded subsequently cannot be relied upon.

Respondent’s contention:- The respondent reiterated the findings of the lower authorities.

Reasoning of judgment:- After hearing both the sides in details and perusing the records submitted the Tribunal had explained that the whole case of the Revenue was based on the statement of Shri Biswajit Bhowmick. Shri Arsh Kumar who imported the goods in the name of M/s. Shiv Shakti Enterprises was not asked whether CHA Firm or Shri Biswajit Bhowmick had been aware of the fact that what was being imported was MPEC card or not and whether he had given them any specific instructions to ensure that the goods are improperly declared and cleared without any problem by the Customs. The Tribunal had also added that one of Directors was summoned but the he had not participated in the investigation at all. Hence, they did not have any statement or submissions during the investigation by the Director of CHA.
Further the Tribunal also stated that the statement of Shri Biswajit Bhowmick was recorded on two occasions. The first statement was recorded immediately when the goods were intercepted on 27-2-2004. In this statement, there is no admission at all by Shri Bhowmick. He stated that he was simply an employee performing clerical work relating to import and he was not a technical person and therefore, was not in a position to recognize the fact that what was being imported was MPEG card and not being decoder. However, in the subsequent statement recorded after four months, he admitted that he was aware that what was being imported was MPEG card and he was aware of it. Thus, the only issue before them was that whether the penalty can be imposed on CHA firm and Shri Biswajit Bhowmick on the basis of single statement that too the second statement recorded in New Delhi as per the appellants.
In that case, the statement had been improved as submitted but in the absence of any corroboration by the importer himself or any facts and circumstances of the case which are needed to reach such conclusion, they had to hold that the decision of the Hon'ble High Court of Gujarat would be applicable to the present case.
Similarly, as regards abatement, the decisions of the Tribunal relied by the ld. Advocate were also applicable. Under those circumstances, they found that no case had been made out against the appellants by the Revenue. They allowed the appeals themselves by setting aside the impugned order and set aside the penalties against both the appellants. Both the appeals were disposed of in the above terms. Stay petitions also gets disposed of.

Decision:- Appeal partly allowed.

Comment:- The gist of the case is that in order to impose penalty on CHA or its employees, it is necessary to prove with corroborative evidences that they were actively involved and actively participated in the mis-declaration of the goods imported by the importer.

Prepared by: Kushal Shah
 

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com