Page 203 - ELT_15th June 2020_VOL 372_Part 6th

2020 ] NARESH DUDHELA v. COMMISSIONER OF CUSTOMS (APPEALS), MUMBAI-II 881

Invoice dated 16-11-1998, signed and issued by him offering the discounted val-
ue of US$ 46,000 plus air freight of US$ 6320 totalling to US$ 55320 for the ma-
chine for which the declare list price was US$ 305,000. In his statement recorded
under Section 108, while admitting that he had issued the said Proforma invoice,
he clearly stated that the Proforma invoice was issued as per the directions of
Shri Harry Gandy, Vice-President (Sales) of the supplier M/s. Signtech USA for
whom he was working as Indian sales agent. The fact that Shri Santosh Nair has
issued the Proforma invoice as directed by Vice-President (Sales) of the supplier,
has not been controverted by the revenue in the appeal filed. Also it is fact on
record that the import documents i.e. Bill of Entry was filed on the basis of
Commercial Invoice 32832686, dated 28-12-1998 issued by the supplier M/s.
Signtech USA. Since the Proforma issued by the Shri Santosh Nair was not even
the basis for filing the import documents the relevance of the same in the current
proceedings for imposition of penalty is not understood. In fact said Proforma
invoice was never the part of the import documentation, though it was part of
negotiation documents between the foreign supplier and the importer in India.
5.2 In view of above discussions we find that Shri Santosh Nair was
acting in course of normal business as sales agent of foreign supplier and had
offered the sale price of the machine as directed by the foreign supplier to the
Indian importer. There is nothing on record to establish that he had abetted in
the evasion of duty by misdeclaring the value, for purpose of imposition of pen-
alty under Section 112(a) and/or 112(b) of the Customs Act, 1962.
6.1 In view of above we dismiss the Appeal No. C/1084/2004 as being
infructuous and Appeal No. C/303/2005 on merits, upholding the impugned
order.
(Order pronounced in the open Court)
_______

2020 (372) E.L.T. 881 (Tri. - Mumbai)
IN THE CESTAT, WEST ZONAL BENCH, MUMBAI
[COURT NO. I]

Shri P. Anjani Kumar, Member (T) and Dr. Suvendu Kumar Pati,
Member (J)
NARESH DUDHELA
Versus
COMMISSIONER OF CUSTOMS (APPEALS), MUMBAI-II
Final Order Nos. A/87241-87242/2019-WZB, dated 6-12-2019 in Appeal Nos.
C/85715-85716/2013
Penalty for misuse of IE Code - Reduction of - Fraudulent import of
chemicals in name of IE Code lent by proprietor of company for consideration
- Rajesh Pravinchandra Joshi, Proprietor of M/s. Ravi Enterprises; accepting
that IEC applied with intention to lend same for monetary consideration -
Also, NOC prepared by importer in name of M/s. Ravi Enterprises so that
amendment in IGM to change name of importer, could be carried out - In-
volvement of proprietor limited to extent of lending IEC to other importers for
EXCISE LAW TIMES  15th June 2020  203