Page 181 - ELT_15th June 2020_VOL 372_Part 6th

2020 ] S. MUTHUSAMY v. ADDL. DIRECTOR GENERAL (ADJ.), D.R.I., MUMBAI 859

cannot be sustained for which reliance is placed on the decision of the Hon’ble
High Court of Delhi in Basudev Garg v. Commissioner of Customs [2013 (294) E.L.T.
353 (Del.)]. Raising further doubts on the acceptability of the impugned order,
Learned Counsel drew attention to the letter of the importer addressed to Direc-
torate of Revenue Intelligence on 16 June, 2016 seeking access to the seized doc-
uments and devices to enable submission of a proper response.
22. Besides taking us through the findings of the adjudicating authority
and the evidence collected by the investigating agency, Learned Authorised Rep-
resentative submitted that the case against importer was that ‘drawings’ in their
possession were manipulated for sending outside the country to enable bringing
them back with the purpose of providing a legal cover for remitting money
abroad. It is her submission that the confiscation, for which the prerogative of
appeal vested only in the importer, should remain intact in the absence of an ap-
peal by the aggrieved entity. It is further contended that it may be premature for
the Tribunal decide upon the confiscability when that was pending before the
jurisdictional High Court. She also objected to the fresh grounds that are being
argued now before the Tribunal as the adjudicating authority did not have an
opportunity to render a finding on those for which reliance is placed upon the
decision of the Hon’ble Supreme Court in Commissioner of Customs & Central Ex-
cise, Goa v. Dempo Engineering Works Ltd. [2015 (319) E.L.T. 359 (S.C.)]. It is further
contended that grounds that were not embodied in the appeal could also not be
raised during the oral arguments and relied upon the decision in re Dempo Engi-
neering Works Ltd. for remand of the matter back the adjudicating authority even
if confiscation was held to be untenable.
23. According to her, the decision in re Lalitpur Power Generating Co. Ltd.
had placed reliance upon the decision of the Tribunal in re Sahil Diamonds Pvt.
Ltd. whereas, in Parkash Sancheti v. Commissioner of Customs, Ahmedabad [2013
(292) E.L.T. 273 (Tri.-Ahmd.)], the Tribunal, dealing with overvaluation of ‘rough
diamonds’, upheld the confiscation and imposition of penalty. This, not having
been placed before the Tribunal during the disposal of the appeal, should, she
opines, exclude the application of the decision in re Knowledge Infrastructure Sys-
tems Private Limited as precedent binding in any other dispute. She also relies up-
on -
‘43… … …. We have no doubt that overvaluation is also a breach that leads
to confiscation after the amendment. For the record, despite the pre-
amended section 111 -
‘(m) any dutiable or prohibited goods which do not correspond in
any material particular with the entry made under this Act or in the
case of baggage with the declaration made under section 77’
and the notes on clauses of the bill for enactment of Act 36 of 1973 explicitly
referring to over-invoiced imports, their Lordships did not forbear to de-
cide that -
‘It is not in dispute that a penal provision has to be strictly con-
strued and reading Sec. 111(m) before the amendment it is not pos-
sible to draw an inference that any difference in material particulars
may be referable to ‘value’. This argument therefore cannot be ac-
cepted. The scheme of Sec. 111(m) as it stood then nowhere referred
to the difference in value as one of the ingredients which may at-
tract this provision. In such a situation therefore if it is not the spe-
cific intention of the provision, a difference in respect of value
EXCISE LAW TIMES  15th June 2020  181