Mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CUSTOMS APPEAL NO.63 OF 2009 Shree Shilpa Industries. ) Keshav Nivas, 20, Napean Sea ) Road, Mumbai-400 026. )..Appellant Vs. The Commissioner of Customs ) Jawahar Custom House, ) Jawaharlal Nehru Port Trust, ) Sheva Village, Dist. Raigad. )..Respondents Mr. V.P. Sawant, for the Appellant. Mr. R.V. Desai, Senior Advocate with Mr. Rohit Pardeshi, for the Respondents. CORAM : F.I. REBELLO & D.G.KARNIK, JJ. DATED : 6 th August, 2009 P.C. The appellant had filed bill of entry. It was subsequently found that the goods were undervalued. Pursuant to that a show cause notice was issued and for some other reasons which the revenue found in the course of investigation relating to one M/s.Annapurna Apparels Pvt. Ltd., The Appellants herein filed their reply. In the show cause notice it was set out that M/s.Annapurna Apparels Pvt. Ltd., were not only importing consignments in their own name but also in the name of other companies and two such consignments were imported in the name of the appellant herein. The show cause notice further set out that M/s.Annapurna Apparels Pvt. Ltd., had paid commission at the rate of 4% to the appellants herein for using their name for the purpose of importing the two consignments. It is not necessary to set out the various other contents of the said show cause notice. In the reply dated 18 th September, 1996 the stand of the appellant was that they had never mis- declared the value of the imported goods. Their further submission was that the Invoice No.92269A had been found at the business centre of M/s.Annapurna Apparels Pvt. Ltd., In para.10 it was specifically set out as under:- My client s state that their concern M/s.Shilpa Industries had received a commission of the CIF value on both the consignments plus duty and clearance charges from M/s.Annapurna Apparels Pvt. Ltd., as admitted by the Department in the said para my clients have never misdeclared the value of the imported goods. Considering the reply and the material the A.O. directed the Appellant herein to pay duty of Rs.11,11,339/- short levied along with interest under Section 28AB of the Customs Act. No penalty was imposed on the appellant but Rs.2.00 lakhs was imposed on Shri Hitesh R. Mehta. 3. The Appellant being aggrieved along with Shri Hitesh R. Mehta preferred an Appeal before the CESTAT. The learned Tribunal after considering the submissions made on behalf of the appellant has noted in para.5 of its order that the appellants were having knowledge about the misdeclaration of the value. Having so observed the appeal of the appellant in so far as duty is concerned was not interfered with. 4. Against that order the present Appeal. At the hearing of this appeal on behalf of the appellant learned Counsel submits that the appellants were not the owners of the goods and that the owners of the goods in fact were M/s.Annapurna Apparels Pvt. Ltd. It is submitted that on a reading of Section 2(26) of the Customs Act, 1962 it would be clear that once the owners are known no duty could have been imposed on the appellant herein. Learned Counsel also placed reliance on the judgment of this Court in Union of India vs. Sampat Raj Dugar, 1991 (56) E.L.T. 739 (Bom). 5. On the other hand on behalf of the Revenue learned Counsel submits that the appellants were the importers , who had filed the bill of entry and had paid customs duty as per their admission as reflected in the reply to the show cause notice and also filed declaration in terms of Section 46 of the Customs Act. Under these circumstances it is set out that there is no substantial question of law arising in this appeal and accordingly the appeal should be dismissed. 6. Having heard learned Counsel we are of the opinion that there is no merit in this Appeal. In the first instance the bill of entry was filed by the appellant herein. Under Section 46 of the Act the importer apart from other things in terms of sub-section (4) has to subscribe a declaration as to the truth of the contents of such a bill of entry. In the bill of entry admittedly, the appellant herein had not disclosed that they were not the owners of the goods. Mere fact that on subsequent investigation the revenue came across material showing violation of the provisions of Customs Act and the Rules would not result in holding that the person who had paid the duty and filed bill of entry cannot be held to be the owner. In the case of Sampat Raj Dugar (supra) this Court was considering the issue Section 2(26) in the context of confiscation. That Judgment really would not apply to the issue which is before us for our consideration. 8. In our opinion, therefore, considering the two concurrent findings of fact there is no merit in this appeal, which is accordingly dismissed. (D.G. KARNIK, J.) (F.I. REBELLO,J.)