Page 297 - ELT_15th July 2020_Vol 373_Part 2

2020 ] BIRD RETAIL PVT. LTD. v. COMMISSIONER OF CUSTOMS (IMPORT), NEW DELHI 279

sembly, power base assembly, wheel assembly with tyre etc. and, therefore, the
benefit of the concessional rate of the duty were certainly not available to them.
26. In view of entire above discussion, we find that appellant have
misdeclared their import consignment and what they have imported were Seg-
way product classifiable under Customs Tariff Heading 8711 90 91 in completely
knocked down condition. We, therefore, uphold the findings of the impugned
order-in-original classifying the import consignments under 8711 90 91. We also
find no reason to interfere with the order-in-original with regard to demand of
Customs duty under Section 28(4) of the Customs Act, 1962 by invoking the ex-
tended time proviso as we find that the appellant have been fully aware as to
what is being imported by them and they have consciously misdeclared their
product as CKD parts of electrically operated two wheelers of captive use classi-
fying the same under chapter sub-heading 8714 99 90. As discussed in preceding
paragraphs it is come out very categorically that what has been imported by the
appellant was Segway product in the CKD condition which required to be classi-
fied under Chapter sub-heading 8711 90 91. This attempt of misdeclaration was
consciously was done to evade customs duty by availing concessional rate of the
duty. Notification No. 12/2012-Cus., dated 17-3-2012. In view of this, we uphold
the correlating finding of the order-in-original with regard to confiscation of the
misdeclared goods under Section 111(m) of the Customs Act, 1962 as well as im-
position of the penalties on the appellant No. 1 as per the provision of Sections
114A and 114AA of the Customs Act, 1962 as well as the demand of the interest
under the provisions of the Customs Act under Section 28AA.
27. With regard to imposition of penalty on appellant No. 2 namely
Shri Rony Abraham, Manager Sales and appellant No. 3 namely Shri Ankur
Bhatia, Director of the appellant No. 1. From the record of the appeal, we find
that both the appellants 2 and 3 were fully aware that M/s. Bird Retail Pvt. Ltd.
is importing complete Segway electrically operated product in CKD condition by
misdeclaring the same as CKD parts of components such as Power unit, trans-
mission kit etc. Both the appellants were aware that the components which have
been imported just indeed screw drive technology to make the same as function-
al Segway product. Shri Rony Abraham, Sales Manager was looking after the
work pertaining to import, preparation of import documents and liaisoning with
the customs clearing agent and subsequent sale of Segway products in a com-
plete functional form. Shri Ankur Bhatia was controlling the activity of the im-
ports as he was financing the same and gave financial approval for various activ-
ities of the import of the Segway product. Both of them were instrumental and
devising a modus operandi to evade customs duty by wrongly availing the benefit
of the Notification No. 12/2012-Cus., dated 17-3-2012. Considering the involve-
ment of both the appellants in entire activity, we feel that the Adjudicating Au-
thority is right in imposing penalty upon them under provision of Section 114A
and Section 114AA of the Customs Act, 1962 and we refrain from interfering the
finding and imposition of the penalty upon these two appellants also.
28. The miscellaneous application filed by the appellant for additional
ground have also been considered and while deciding the above appeal and
same are also being kept in mind and accordingly the miscellaneous application
also stand disposed of as being decided in the case of the main appeal.
29. In view of above, all the appeals are dismissed.
(Order pronounced in open Court on 24-2-2020)
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EXCISE LAW TIMES  15th July 2020  297