Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  GST registration cancellation without reasons amounts to ‘Economic Death’ of business: Supreme Court. *  No GST refund if appeal before GSTAT is filed late: Gujarat High Court. *  Mere upload of GST notice on portal not valid service, appeal limitation won’t start: Punjab & Haryana High Court. *  Taxpayer can’t be penalised for missing notices hidden under ‘Additional Notices/Orders’: Calcutta High Court allows fresh adjudication. *  State tax officer can’t issue GST SCN beyond CBIC-assigned jurisdiction: Bombay High Court stays recovery proceedings. *  Earlier 7.5% Pre-Deposit must count towards mandatory 10% for Appeal: Uttarakhand high court quashes CESTAT Order. *  Third Parties can’t challenge GST Advance Rulings merely due to financial impact: Karnataka HC *  GST SCN generated using AI tool quashed: Punjab & Haryana High Court *  Bank Attachment Quashed as Madras HC Quashes GST Order Issued Against Deceased Person *  ITC Blocking Order for Failure to Record ‘Reason to Believe’ U/R 86A Quashed: Allahabad High Court *  Govt Extends GSTAT Appeal Filing Deadline From 30 June to July 31, 2026 *  GST Demand on RWA Stayed: Allahabad High Court Questions Taxability of Electricity Distribution to Flat Owners *  CBIC Clarifies Jurisdiction After GST Registration Transfer: Earlier Proceedings Remain Valid, New Officer to Continue Action *  GST authorities’ certification not mandatory for reimbursement, but tax payment must be proven: Karnataka HC *  Contractor can’t seek gst reimbursement through writ when contract has arbitration clause: Karnataka HC *  Unsigned Order Is No Order in Law: AP HC Quashes GST Assessment Order for Want of Officer’s Signature *  Customs Can’t Levy Rs. 1.36 Crore Cost Recovery Charges Without Proof of Full-Day Officer Deployment: CESTAT  *  12% IGST Payable On Imported Dialysis Machine Parts: CESTAT *  Bombay High Court Admits Challenge to GST Limitation Extension Notifications; Grants Protection Against Coercive Recovery *  Criminal Case Can’t Run Parallel to GST Proceedings on Same Facts: Allahabad High Court *  Allahabad High Court Stays GST Detention Order; Directs Release of Vehicle and Goods on Deposit of Rs. 1.44 Lakh *  Service Tax Can’t Be Levied on Loss-Making Contracts: Gujarat High Court *  GSTN Mandates Ship-to GSTIN in e-Invoice and e-Way Bill APIs; Introduces Voluntary e-Way Bill Closure Facility from August 1, 2026 *  GST Appeal Can’t Be Rejected as Time-Barred When Taxpayer Was Pursuing Rectification Remedy: Telangana High Court *  Absence of E-Way Bill and Transport Documents Justifies Customs Seizure U/s 110: Gauhati HC *  Madras High Court Upholds GST Late Fee and Penalty for Non-Filing of Annual Return, Dismisses Challenge  *  GST Records, Purchase Documents Sufficient to Discharge Burden Under Customs Act: CESTAT Orders Release of 3.65 Kg Gold  *  No Sugar Cess Payable on Sugar Exported Out of India: CESTAT *  Road Construction Services Exempt and SCN Time-Barred: CESTAT Quashes Service Tax Demand Based Solely on Form 26AS  *  ITC Freeze Upheld After GST Dept Find Suppliers Were Allegedly Fake Bill-Trading Entities: Madras HC 
Subject News *  Input service benefits can’t be denied: CESTAT allows export refund despite MMTC acting as Canalising agency. *  No service tax demand without proof of service of SCN: CESTAT. *  Service tax demand quashed as dept. fails to prove service of SCN: CESTAT *  GST : Mere allegation of inadequate consideration of reply not enough to invoke writ jurisdiction: Delhi High Court *  Onerous conditions imposed for provisional release of seized imported goods shouldn’t amount to virtual denial of relief: CESTAT. *  GST SCN without alleging fraud cannot invoke sec. 74: Karnataka High Court quashes adjudication order. *  Extended Limitation Can’t Be Invoked Merely on Form 26AS Data: CESTAT *  Revenue-Sharing with Restaurants Not Taxable as Business Support Service: CESTAT *  R. 6(3) Option Can’t Be Forced on Taxpayer; CESTAT Quashes Rs. 12.36 Crore CENVAT Credit Demand *  Excise Duty | Power Consumption Alone Can’t Prove Clandestine Manufacture: Karnataka High Court *  Madras High Court Examines DGGI’s Authority to Issue GST Penalty Orders Under Section 122, Adds DGGI as Party *  Proceedings under omitted r. 96(10) can’t survive without saving clause: andhra pradesh high court quashes gst refund recovery *  Excise duty power consumption alone can’t prove clandestine manufacture: karnataka high court *  Madras high court rules GST show cause notices must disclose grounds for invoking extended limitation *  Court Can’t Direct Extension GST Return Deadlines or Waive Interest and Penalties: Karnataka High Court *  GST Notifications Can’t Go Beyond GST Council Recommendations: Madras High Court Quashes SCN on Branded Pulses *  Appeal Can’t Be Dismissed for Delay When Dept’s Own Order Mis-states Limitation Period: CESTAT *  No Evidence of KYC or Due Diligence Breach By Customs Broker: CESTAT Quashes Licence Revocation in Export Overvaluation Case *  Glucometers Are Chemical Analysis Instruments Classifiable Under Tariff Heading 9027: CESTAT *  Validity of Post-GST Service Tax Proceedings Upheld: Gujarat High Court Dismisses Challenge to S. 73 SCN *  Rectified GST Refund Applications Can’t Be Rejected as Time-Barred If Original Refund Claim Was Filed Within Limitation: Gujarat HC *  Service Tax Refund Can’t Be Denied as Time-Barred When Levy Itself Is Unconstitutional: Gujarat High Court *  Same Officer Can’t Act As Auditor & Adjudicator: Karnataka High Court *  Karnataka High Court Condones 324-Day Delay, Revives Customs Appeal in Jewellery Pilferage Case  *  Madras High Court Quashes GST Assessment Order Passed Ex Parte Despite Prior ITC Reversal; Lifts Bank Attachment *  Tobacco Process Doesn’t Amount to Manufacturing: Madras High Court Quashes Rs. 1.32 Crore Compensation Cess Demand  *  Recovery Notice Unsustainable After Voluntary Reversal of Unutilised Credit: CESTAT  *  GST | ‘System Generated’ SCN Without Officer Details Invalid: Allahabad HC  *  Electronic Records Without Statutory Certification Requirements Can’t Justify Undervaluation Allegations: CESTAT *  Madras High Court Stays GST Order, Finds Prima Facie Merit in Plea Against S. 74 Proceedings Based on S. 73 Intimation  

Comments

Print   |    |  Comment

PJ-Case law-2013/14-1589

Whether waiver from penalties admissible when urea exported in the guise of mud additive chemicals?

Case: - MANISH SINGHAL, PROP M/s SINGHAL TRADERS Vs COMMISSIONER OF CUSTOM, NEW DELHI

 

Citation: -2013-TIOL-596-CESTAT-DEL

 

Brief facts:- The facts of this case in brief are that the appellant exported urea in the guise of mud additive chemicals. Test report proved that the goods exported are 'urea in the form of white Granules' which is prohibited goods under Section 2(33) of Customs Act, 1962. The exporter admitted that similar consignments have been exported in the past. The suppliers of the exported goods were found to be non-existent. The burden to prove bonafide nature of past consignments had shifted to the exporter and he had done nothing in this regard. Prima facie it appears that fraud was committed against Revenue. The exporter has not made out a case for total waiver of the pre-deposit of penalties.

 

Appellant’s contention:- Ld. Counsel appearing on behalf of the appellant submits that when the appellant was in custody he was not aware of the contents of the test report issued by the CRCL. Past consignments have been brought to the scope of consideration in the adjudication to penalize the appellant to the extent of Rs.25 lakhs under Section 114 and 114AA of the Customs Act, 1962. There as no documentary evidence nor oral evidence against the appellant. In absence of evidence demonstrating appellant's involvement in breach of law, penalty to the extent of Rs.25 lakhs was uncalled for in view of the fact that the goods are in the custody of customs and no delivery has been taken.

 

Respondent contention:- Revenue's submission is that when the goods were found to be misdeclared causing prejudice to the interest of Revenue, on the basis of test report of CRCL appropriate adjudication was done ordering seizure and confiscation. The adjudicating authority in para-34 of his order has exhibited his mind as to the reason why he proceeded to examine the issue. Though the goods were "urea" but mis-declared as prepared Mud Additive Chemicals for oil well. Considering gravity of the matter in SP/669/2012 (In CA-69/2012) and SP/670/2012 in (CA-70/2012) this Bench took a view that prejudice has been caused to Revenue by misdeclaration - attempting to export urea for which there was a direction for pre-deposit by an elaborate order. All the earlier 25 consignments which is pleaded by the appellant has formed part of adjudication was one of the factors while imposing dose of penalty which were exported two months by the same party. The authority also noticed that the party claimed to have supplied the goods were not in existence for which Authority held that there was subterfuge to Revenue.

 

Reasoning of judgement:- The tribunal found thatwhen shipping bill No. 1163482 dated 19.4.2010 was presented, samples of the goods contained in the Container No. PMLU 2000540 and TEXU-2968846 were taken and sent to CRCL for testing. Although the goods were declared by the appellant as mud Additive Chemicals that was proved to be 'urea in the form of white Granules' which is prohibited goods under Section 2(33) of Customs Act, 1962. It appears from the adjudication order that the test report remained uncontroverted. Ld. Adjudicating authority had brought out the mis-declaration in para-2 to 6 where the background of mis-declaration has been discussed. Authority was quite aware of the character and nature of the goods with the classification of the goods under Customs Tariff Act, 1962. When he could know that there was a deliberate mis-declaration to willfully export urea from India for undue enrichment he proceeded on the basis of the outcome of the investigation and materials before him. When the appellant was examined under Section 108 he described about his deals and the proprietor appellant clearly stated in para-14 of the adjudication order that how the prohibited goods were escaping notice of the customs which called for the present adjudication. From the very statement recorded which is summarized by adjudicating authority it appears that seizure under customs law was warranted. In para-15 of the order, ld. Authority made reference to the modus operandi of the appellant in respect of earlier 25 consignments. But that was not the sole basis of adjudication. When the claimed purchases were investigated, as revealed by para-16 of the order there was foul game played against investigation and sellers were found to be non-existent. Investigations came with the following result which is summarized in para-19 of the order as re-produced below:-

 

Therefore, from the foregoing, it appears that:-

 

(i) All the goods exported as detailed in para-13 above have one description i.e. Mud Additive Chemical (Technical Grade) for oil well. All the exported goods have the similar quantity and have been supplied to same consignee. This has been accepted by the exporter and is conclusively suggestive of the fact that the same goods have been supplied in the past consignment by the exporter;

 

(ii) The party tried to willfully and fraudulently mis-declare the goods covered by Shipping Bill No. 1163482 dated 19.4.2010. The goods were intentionally misdeclared as Mud Additive Chemical (Technical Grade) for oil well. The sample drawn from the shipment upon testing by CRCL confirmed that the goods were different from the declaration given by the exporter and were in fact found to be UREA. Export of urea is subject matter of restriction imposed under SI.No. 127 of the Schedule-2 of the Export Policy and could only be exported on prior permission of the competent authority and certified to be issued by the proper office as is envisages under Sl. No. 127, Column-6 Nature of Restriction (Policy condition). Since the exporter was exporting subject consignment without fulfilling statutory requirement along with deliberately for declaration. These circumstances render the goods liable for confiscation under Section 113(d), 113(h) and 113(i) of the Customs Act, 1962.

 

(iii) The exporter admitted that the goods previously exported by him (As per Annexure-A) and the goods of present consignments are Urea and alike.

 

(iv) Shri Dinesh Bhardwaj, holder of G Card no. 71/2000 CHA, Shri R.P. Jindal has knowingly facilitated the exporter to carry out the export of restricted goods out of India without the requisite licence and undertaking.

 

(v) The suppliers M/s Amit Enterprises, Paras Enterprises and M/s Vansh Overseas have also knowingly and willfully supplied the restricted items to the exporter for exporting the same out of India illegally."

 

When the incriminating material came before investigation inculpating the appellant, there was no scope to adjudicate in favour of the appellant at the adjudication stage. Prima facie it appears that adjudication has not proceeded erroneously. Prima facie it also appears that fraud was committed against Revenue as is revealed from reasoned and speaking order. We are therefore unable to waive requirement of pre-deposit when the appellant failed to avail redemption option against prohibited goods and two years have already expired from the date of seizure and whether the goods are having any value by its nature is doubtful. To protect the interest of Revenue we consider that pre-deposit of Rs.10 lakhs (Rupees Ten lakhs) with four weeks would be justified. We make it clear that when we find prima facie that there was a misdeclaration in the present consignment and there was attempt to defraud Revenue and surrounding circumstances question conduct of appellant, we have not unmindfully passed above order since interest of revenue has been seriously jeopardized. We have tried to strike out a balance as an interim modality when the appellant stated that goods are under seizure but two years have been expired without exercise of option to redeem the goods by appellant on payment of very small under option fine of Rs.1,00,000/- (Rupees One lakh) levied. Mere custody of goods is not sufficient pleading for waiver unless quality of goods is proved to be good and yet having value with passage of time. So also the reason why option to redeem was not availed facie base on sound reason since goods confiscated is no more property of appellant. Keeping in view the financial hardship pleaded by the appellant but finding no merit at this prima facie stage, we have been guided by apex court judgement in the case of Dunlop India Ltd. Vs. CCE - 1985 (19) ELT 22 = (2002-TIOL-156-SC-CX), Benera Valves Vs. CCE – 2006 (204) ELT 513 = (2006-TIOL-156-SC-CX) and Ravi Gupta Vs. Commissioner of Sales Tax, Delhi - 2009 (237) ELT 3 (SC) = (2009-TIOL-47-SC-CT)to order as above.

It was vehemently argued by the Counsel that the test report in respect of goods covered by shipping bill No. 1163482 dated 19-04-2010, which report showed that the goods declared by the appellant as "Mud Additive Chemical (Technical Grade) for Oil Well" to be actually Urea, could not be extended to the past 25 consignments (totally valued at Rs. 1,13,46,980/-) in respect of which no tests were done. What we find is that the goods were declared with the same description in the past 25 consignments also. The goods were exported to the same buyer that is "Kaz Link Holding Malaysia". During investigations it was found that the goods were procured by the appellant from three traders namely M/s Amit Enterprises, M/s Para Enterprises and M/s Vansh Overseas. The first two suppliers could not be located. The proprietor of the third firm submitted that he had sold goods used as manure to the appellant. So it is clear that the description "mud additive chemical" was a subterfuge used for fertilizer only.

 

During investigation Shri Manish Singhal appellant admitted in a statement given under section 108 of the Customs Act that goods exported in the past were also of the same nature as the goods seized. Even now the appellant is not able to specify what exactly was the chemical exported in the past consignments and what was its use. He is also not able to identify two of the three suppliers of the goods. The statement of the third person supports the case of Revenue. Thus the burden to prove bonafide nature of past consignments had shifted to the appellant and he had done nothing in this regard. When all these facts are assessed together we are prima facie of the view that the finding of the adjudicating authority that the past consignments were also of urea is a reasoned conclusion and not perverse.

 

In view of the above, pre-deposit is ordered.

 

Decision: - Pre-deposit ordered.

 

Comment:- The gist of this case is that a strict approach is followed while deciding the stay application for penalties when it is primarily clear that assessee was at fault and had a malafide intention to defraud the revenue.

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