[Order per : T.K. Jayaraman, Member (T)]. - These appeals have been filed against Orders-in-Original No. 27/2004, dated 27-7-2004 passed by the Commissioner of Customs, Bangalore and Order-in-Original No. 2724/2004, dated passed by the Commissioner of Customs, Chennai.
The appeals against the Order-in-Original No. 27/2004, dated 27-7-2004 passed by the Commissioner of Customs, Bangalore, are as follows :
| Appeal No. | Appellant | Differential Duty | Redemption fine | Penalty |
| C/428/04 | M/s. Carpenter Classic Exim (P) Ltd. | Rs. 59,12,619/- | Rs. 15,00,000/- | Rs. 55,44,396/- |
| C/429/04 | Ravi Karumbaiah, MD, CCEPL | - | - | Rs. 10,00,000/- |
| C/433/04 | Sanjeev Kabbur | - | - | Rs. 1,00,000/- |
The appeals against the Order-in-Original No. 2724/2004, dated 30-9-2004 passed by the Commissioner of Customs, Chennai are as follows :
| Appeal No. | Appellant | Differential Duty | Redemption fine | Penalty |
| C/436/04 | M/s. Carpenter Classic Exim (P) Ltd. | Rs. 36,96,201/- | - | Rs. 9,61,506/- |
| C/437/04 | Ravi Karumbaiah, MD, CCEPL | - | - | Rs. 9,00,000/- |
| C/13/05 | Thomas Mathew | - | - | Rs. 5,00,000/- |
| C/06/05 | Sanjeev Kabbur | - | - | Rs. 7,00,000/- |
The DRI Officers received intelligence regarding the undervaluation of imported goods by the appellants. The business premises and the residential premises of the concerned persons were searched and incriminating documents were seized. Statements of S/Shri Ravi Karumbaiah, Managing Director of M/s. Carpenter Classic Exim Pvt. Ltd., V. S. Chandan, CADD Operator were recorded under Section 108 of the Customs Act, 1962. The residential premises of Shri Sanjeev Kabbur, Ex-Marketing Manager of the company were searched and some documents were seized. Statement of Sanjeev Kabbur was also taken. Ms. Jagruthy Sevak was the Executive of the appellant-company, her statement was also recorded. The investigations conducted revealed that Shri R. Karumbaiah, his wife, Shri Thomas Mathew and his wife as Directors started M/s. Carpenter Classics Exim Pvt. Limited (CCEPL) as a private limited in the year 1995. The company decided to import their requirements of kitchens from Veneta Cucine of Italy who are reputed manufacturers. Shri Karumbaiah and Thomas Mathew hatched a conspiracy to undervalue their imports for increasing their profits in the local market. For this purpose, they had prepared the invoices of the foreign supplier and sent them to Italy. Thomas Mathew floated a front company in the name of Proma SRL, the manipulated invoices were raised in the name of the above front company. These invoices were filed by the appellant before the Customs for assessment. They imported their first import in the year 1995 through ICD, Bangalore. The foreign suppliers invoice and packing list had been signed by Shri Thomas Mathew on behalf of M/s. Proma SRL. CCEPL communicated their requirements along with the drawing to Proma SRL with a copy to Veneta Cucine, sometimes the order were communicated directly to Veneta Cucine. Proma SRL prepared the bill showing the actual price in Lira and forwarded the drawings to Veneta Cucine. Veneta Cucine in turn forwarded the confirmation order to Proma SRL and CCEPL. These orders of confirmation indicated the actual price of the products ordered in Liras. Veneta Cucine at the time of loading of containers and shipment prepared their own packing lists showing the order numbers of CCEPL and the destination as CCEPL. CCEPL arranged for their representatives to the present at the time of loading of the containers at the factory premises of Veneta Cucine to ensure not only proper loading but also to relabel the packages to make it appear that the shipment had been affected by Proma SRL. CCEPL presented the invoices prepared in the name of Proma SRL along with the Bills of Entry which showed substantially lower prices than what was actually charged by Veneta Cucine. In order to camouflage the entire conspiracy of undervaluation CCEPL collected a certain portion of their sales proceeds from certain customers in cash. The cash so collected was handed over by Shri R. Karumbaiah to Mr. Thomas Mathew for settling the account of Veneta Cucine. The portion containing the prices in the confirmation order has been cut out in almost all such documents ostensibly to hide the actual price from the customers. Thus, CCEPL substantially undervalued their import consignments in order to evade payment of customs duty. Similar modus operandi were adopted to import goods through Chennai Port also. On the basis of investigation, show cause notices were issued to the noticees. After observing the principles of natural justice, the adjudicating authorities at Bangalore and Chennai passed the impugned orders.
2. Shri B.V. Kumar appeared for the appellants-CCEPL and Shri Lakshminarayan appeared on behalf of Mr. Sanjeev Kabbur. Mr. K. S. Bhatt, SDR and Mr. K. S. Reddy, JDR appeared on behalf of the Revenue.
3. The learned Counsel urged the following points :
(a) The impugned orders reveal non-application of mind by the adjudicating authorities.
(b) The Orders have been passed merely on assumptions and presumptions without any evidence on record except for one consignment. This is an admitted fact by the Department in their own affidavit filed before the Hon’ble Settlement Commission, Chennai during the course of proceedings held in respect of the application filed by the appellants under Section 127D of the Customs Act for the settlement of the present case.
(c) The learned Commissioner failed to give any findings on the affidavit dated 9-5-2003 sworned by the Addl. Director, DRI Bangalore and filed before the Hon’ble Settlement Commission which was placed before the Commissioner during the course of de novo proceedings and is very vital in the present case.
(d) As can be seen from the affidavit sworn before the Settlement Commission, only in respect of the consignments called India-13 and India-14 imported by the appellants, the DRI officers have been able to place on record evidence to show that the appellants had under-invoiced the impugned goods. The appellants therefore submit that the duty demand, if any, can only be in respect of the said two consignments and not Rs. 36,96,201/- as demanded under the impugned order.
(e) The statement of Ravi Karumbaiah is not admissible on the ground that they were given under duress and also there is no corroboration by independent evidences.
(f) The statement of Ravi Karumbaiah was recorded immediately after the income-tax officers conducted interrogation, for which he was detained on 18-12-98 till late in the night. This was immediately followed by the interrogation by the DRI till next day and the statement was recorded when he was under pressure and strain.
(g) No reliance can be placed on the statement of Sanjeev Kabbur dated 27-11-1999, as he is a co-accused. It is well settled that on the basis of the confession of the co-accused, no conviction can be made unless the said confession in corroborated in the material particulars. The learned counsel relied on a large number of decisions.
(h) Relying on the decision in the case of Elektro Kool Industries v. CCE, Hyderabad - (T) = 2004 (63) RLT 296 (T), the learned advocate submitted that the appellants should have been given an opportunity to cross-examine Sanjeev Kabbur, since the Commissioner wanted to rely on his statement. The Tribunal has held that if the lower authority wants to rely upon the statement of a concerned person, it is his bounden duty to allow the matter to be cross-examined by the concerned parties and failure to do so, amounts to denial of principles of natural justice.
(i) No adverse inference can be drawn from the statement given by Shri V. S. Chandan, as he has only stated the normal business activities that are undertaken by the appellant-company on behalf of the customers.
(j) As regards the statement of Jagruthy Sevak regarding payment by cash and cheque, it was submitted that such payments do not represent the cost of the goods imported as they are meant for civil work for availing the services of mansons, carpenters, plumbers and electricians who carry out the installation of equipments.
(k) Reliance has been placed on a fax dated 21-4-1997 said to have been sent by Thomas Mathew. The Commissioner has observed that the fax reveals that for the imports made during the period from November, 1995 to December, 1996, the value paid to M/s. Veneta Cucine was Rs. 82.82 lakhs, whereas the CIF value of imports as per Bills of Entry filed with the Department during the same period comes to only Rs. 33.22 lakhs, which indicates that the declared value was lowered to the extent of 60% from the actual value. It was submitted that during the financial year 1995-96, only one import took place through ICD, Bangalore vide Bill of Entry dated 18-4-1995. The said import does not fall within the period November, 1995 to December, 1996, as mentioned in the alleged fax message. As such the contents of the said fax message have no nexus to the Bill of Entry dated 18-4-1995. Therefore, the Commissioner erred in relying on this document and extrapolating the same for a period which is not covered by the said fax message.
(l) The fax message dated 21-4-1997 is not admissible in evidence as the same was not found in the business premises of the company or at the godown of the company or at the residence of Ravi Karumbaiah or Jagruthy Sevak. Under the circumstances, the presumptions that is available under Section 139 of the Customs Act, 1962 would not be available against the appellants. Moreover, the authenticity of this alleged fax message has not been established inasmuch as the Department has not recorded the statement of Thomas Mathew till date. Section 138C(1) relied on by the Commissioner provides that facsimile copy of a document shall be admissible in any proceedings but does not provide that a photocopy of a facsimile can be used against an importer for making a charge of undervaluation of the goods.
(m) The alleged transactions mentioned in the said fax message have not been corroborated by leading evidence in the form of a statement of Thomas Mathew or from Paramount Kitchen or Veneta Cucine. In absence of such corroboration, the fax message is not admissible in evidence.
(n) In the impugned order, no findings have been given to establish a directs correlation between the contents of the said fax message dated 21-4-1997 with the imports made at Bangalore Customs and Chennai Customs.
(o) The Commissioner relying on the statement of Pushpa Reddy, land lady of the residence rented out to Thomas Mathew has observed that the appellant-company had access to the said premises which is factually incorrect and far from truth. During the cross-examination of Shri C.V. Sachidananda, Sr. Intelligence Officer, it was revealed that the key of the house was produced by the land lady Mrs. Pushpa Reddy.
(p) No investigation was conducted in Italy in respect of the oversea suppliers of the impugned goods. No efforts were made by the department to issue summons to Thomas Mathew either at his known address in Kuwait or in Italy. Similarly, no evidence has been placed on record to show that summons were issued to any of the representatives of the Italian Company’s concerned.
(q) No reliance can be placed on the fax messaged dated 21-4-97, which is an unauthenticated document. The learned advocate relied on a large number of decisions.
(r) As regards the fax message dated 5-4-97, it was submitted that there is nothing contained therein to prove the case of the Department that the appellants under-valued the goods. A perusal of the facts shows that these are instructions given to Thomas Mathew of Proma SRL as to the procedures to be followed to ensure proper packing of the goods. Since these goods are imported against specific order, which are customs made and are also fragile.
(s) The fax dated 5-4-1997 is a photocopy and an unsigned document and hence no reliance can be placed on this document.
(t) As regards the fax message 8-10-98 alleged to have been signed by Ravi Karumbaiah and addressed to Thomas Mathew, the Commissioner has observed that this fax message confirms the fact that he had arranged for payment of US $ 60,000 and will organize more funds as and when needed. It was submitted that in the reply filed by Thomas Mathew to the impugned show cause notice, he has stated that he never received any amount in cash towards the alleged difference in prices. He further submitted that the contention of the Department that the impugned goods were under-valued is based on assumptions and presumptions and entirely arbitrarily. No documentary evidence has been placed on records to show that the appellant-company have paid any amount in cash to Thomas Mathew or paid any amount to anybody else on behalf of Thomas Mathew.
(u) Ravi Karumbaiah sent a letter dated 9-10-98 in continuation of his letter dated 8-10-98, these two letters deal with a request for a credit for an amount equivalent to US $ 60,000 for which adequate funds had to be arranged by the appellant-company against a shipment to be made. There is nothing to indicate in the said two letters, whether that particular transaction fructified or not.
(v) The Commissioner’s observations on the letters dated 8-10-98 and 9-10-98 to the effect that Ravi Karumbaiah and Sanjeev Kabbur have clearly admitted that the cash payments were used to settle the difference between the actual value and the declared import value, is not correct. The Commissioner has mis-interpreted the statement of Ravi Karumbaiah as nowhere in his statement dated 7-8-1999 he has stated that he paid the difference in value to Thomas Mathew to settle it with Veneta Cucine.
(w) The letter dated 10-1-98 from the residence of Sanjeev Kabbur at Belgaum was seized, on 27-11-99 almost one year from the date of commence of the investigation. It appears that the said Mahazar was drawn at Bangalore while the residence which was searched is at Belgaum. The place of drawing the Mahazar has been mentioned as Bangalore. Further, this letter has not been shown to Ravi Karumbaiah to verify the authenticity of the letter. This letter was signed by Sanjeev Kabbur who is a co-accused and since he has not been cross-examined, no reliance can be placed on the said letter.
(x) The contents of the letter dated 10-1-98 have not been proved. Moreover, Sanjeev Kabbur being an ex-employee could have fabricated the letter.
(y) Under Section 61 of the Indian Evidence Act, 1872, the correctness of the contents of the documents can only be proved by examining the person who is responsible for writing the said documents. In this case, no investigation was conducted by the Department with the help of the Italian Customs to verify the Books of Account of the overseas supplier to ascertain the correctness or otherwise of the photocopies of certain documents purported to have originated from the said overseas suppliers.
(z) No evidence has been placed on records to show that to support the allegation in the show cause notice or the findings in the impugned order that the invoice of the foreign supplier were either manipulated or prepared at Bangalore by the appellant-company and were sent by them to Italy. In the absence of such evidence to support such an allegation is not correct.
(aa) The Commissioner has observed that Ravi Karumbaiah has admitted that Proma SRL was a front company set up in order to get the documents in the name of the said company and to evade payment of Customs duties. The appellants submit that from the extract from the Company’s house record, it is clear that the Proma SRL is a genuine company, which is in existence. Hence, it is clear that there are discrepancies in the statement recorded from Ravi Karumbaiah and as such it is clear that the statement was obtained under duress and coercion.
(bb) It was submitted that the overseas suppliers have the appellants substantial discount on the listed price and it was for this reason that the prices mentioned in the invoices were deleted. It is a normal trade practice not to reveal the price of the product at which they are procured by the importer/wholesaler to a customer. This is done basically to prevent the customers from knowing the margin of profit enjoyed by a wholesaler/importer, otherwise customer will start bargaining.
4. It is sentthat Mr. Thomas Mathew has been penalized in the Orders passed by the Commissioner of Customs, Bangalore/Chennai. However, he has appealed only against the Order passed by the Commissioner of Customs, Chennai. Shri A. S. Sundararajan, learned Advocate has represented Thomas Mathew in filing the appeal. The main ground taken in the appeal is that the impugned show cause notice dated 7-12-99 has not been served on the appellant within the limitation period and as prescribed under Section 153 of the Customs Act, 1962. It was submitted that Shri Thomas Mathew was born to Indian parents at Kuwait and he is a citizen of Italy. He was resident of Italy from 1985 to 1996, thereafter he has been staying at Kuwait. He has never been a resident of India. During his business visits to India, he came into contact with Ravi Karumbaiah, thereafter he was appointed as a Director of the Importer Company (CCEPL, Bangalore) with no official duties to be discharged as per the provisions of the Company’s Act, 1956. During his visit to Bangalore, he availed of the hospitality of CCEPL who had an office-cum-guest house at Indira Nagar, Bangalore. The premises of the importer was never the postal/permanent/temporary address of the appellant. No statement was recorded by the DRI from the appellant, the entire enquiry was directed against the importer and its promoter Ravi Karumbaiah. With a view to extricate himself, Shri Ravi Karumbaiah appears to have made certain allegations and given certain exculpatory statement, as if the appellant was instrumental in the alleged violation of the various provisions of the Customs Act, 1962. No opportunity was given to the appellant to have his say in the matter. The show cause notice dated 7-12-99 was not furnished to the appellant. On 3-6-03, the advocate for the appellant submitted a reply to the show cause notice. It was submitted that the show cause notice was not served in accordance with the provisions of Section 153 of the Customs Act. The notice appears to have been sent to Bangalore were the noticee does not reside. In these circumstances, the notice was barred by limitations and not sustainable in law. In the proceedings before the Settlement Commission the appellant was not a party. None of the relied on documents has established the case against the appellants. The adjudication order copy meant for the appellant has been addressed to the advocate, as if the advocate is an agent for this purpose. The adjudicating authority failed to appreciate the contention of the appellant throughout the proceedings that the show cause notice has not been served in accordance with the provisions of the act and therefore, the said proceedings are rendered ab initio void. The Commissioner failed to appreciate and consider this specific judgment of the Hon’ble Tribunal in the matter of M/s. Jaishree Textiles wherein it has been held that what is required to be accomplished within six months is not the issue of the notice but service of the notice to the person concerned.
5. Shri Lakshminarayan, Advocate appeared on behalf of Mr. Sanjeev Kabbur. The appellant was only an employee of the company and he has acting entirely on the directions of the Managing Director. The appellant was not a beneficiary in respect of any of the dealings of the company and cannot therefore be held liable for penalty action for violation of the provisions of the Customs Act. When the investigation commenced the appellant had already left the services of M/s. CCEPL. The Original Authority had chosen to exonerate Ms. Jagruty Sevak on the ground that there was no evidence to prove that she was personally involved in any manner in the alleged case of undervaluation of goods imported by M/s. CCEPL. The reasoning adopted while dropping penal action against Ms. Jagruty Sevak would equal apply to the appellant. The appellant was an employee and had to act as per the instructions of his employer otherwise he would have lost his job. The appellant also did not derive any personal benefit out of the under-invoicing.
6. We have gone through the records of the case carefully. The main charge against the appellants is that of undervaluation of the imported goods using a particular modus operandi. Many incriminating documents have been seized from the premises of the appellants. Statements have been recorded under Section 108 of the Customs Act, 1962 from S/Shri Ravi Karumbaiah, Managing Director of CCEPL, Sanjeev Kabbur, an ex-employee, V. S. Chandan and Ms. Jagruty Sevak. The DRI investigation was taken up consequent to certain income-tax department’s investigations. Shri Ravi Karumbaiah the Managing Director is the chief promoter of the appellant-company. Shri Sanjeev Kabbur was ex-marketing manager of the company. Shri Thomas Mathew is the Director of appellant-company and he is also a Director of Proma SRL, who issued the invoices relating to the imports. The allegation is that with the help of Thomas Mathew invoices were issued by Proma SRL using it as a front. The actual suppliers of the imported equipment were M/s. Veneta Cucine and other foreign companies. Investigations have established that the value of the imported goods as per Veneta Cucine is different from those in the invoices of Proma SRL. The difference between these two values has been settled by Shri Thomas Mathew, who would collect the differential during his visits to India and later settle the same with Veneta Cucine. This is broadly the modus operandi. There is also evidence to show that in India when the goods were supplied to the customers, part of the payment was made by cheque and the rest by cash. In establishing this case, Revenue has relied on the following documents.
· Photocopy of a Fax dated 21-4-1997, said to have been sent by Thomas Mathew bearing No. VC/CC/9708, dated 21-4-97 addressed to Anchise Ballestrieri and Vittorio Tollardo of Veneta Cucine S.P.A., Treviso, Italy.
· Photocopy of a fax message No. CCEPL/TM/089/97, dated 5-4-97, said to have been sent by Carpenter Classics to Thomas Mathew.
· Photocopy of a fax message dated 8-10-98, said to have been sent to Thomas Mathew by Ravi Karumbaiah.
· Photocopy of a letter No. CCEL/Proma/1362/97-98, dated 10-1-98 to have been sent by Carpenter Classics to Proma SRL.
· Photocopy of Bill of quantity and Order confirmations of M/s. Veneta Cucine pertaining to shipment called lndia-13 and lndia-14.
· Photocopy of packing list of M/s. Veneta Cucine pertaining to shipment called lndia-13 and lndia-14.
Several objections have been made by the learned advocate Shri B.V. Kumar with regard to the reliance on the above documents. According to him, some of the documents are unsigned and photocopies of faxes and these documents have not been properly proved by calling the authors of the documents and examining them. Our attention was invited to the fact that no statement has been recorded from Shri Thomas Mathew. It was further submitted that the handwriting in the documents have not been examined to fix the authorship. It was also submitted that no investigation has been carried out by the DRI in Italy with regard to the various documents relating to the suppliers of the imported goods. It was strongly contended that on the basis of the statement of the co-accused the charges against the appellant cannot be sustained. A plethora of decisions were cited by the learned advocate. Our attention was also invited to DRI’s affidavit before the Hon’ble Settlement Commission wherein they had stated only in respect of one consignment there is complete evidence of undervaluation. Further, it was submitted that cross-examination of the persons who are supposed to be the authors of various documents seized was not allowed and therefore, there was denial of the principles of natural justice. It was further stated that the statement of Shri Ravi Karumbaiah was obtained under coercion and threat. It was submitted that there was actually no undervaluation and the foreign suppliers gave them huge discount. Many case laws were cited to show that transaction value cannot be rejected by directly taking recourse to Rule 8 of the Customs Valuation Rules. It was further stated that M/s. Proma SRL is actually an existing and not a front company as held by the Adjudicating Authority. It was further contended that the fax dated 21-4-1997 relates to a period from November, 1995 to December, 1996 and during that period there was no import through Bangalore. As regards, the collection by cash it was contended that the appellants while supplying the goods to the customers are expected to undertake considerable civil work and for that purpose cash was collected. That cash has nothing to do with the value of the imported goods.
7. We have considered all the above contentions of the learned advocate. Shri Ravi Karumbaiah has given three statements under Section 108 of the Customs Act. In his statement dated 7-10-99, we are giving the following extract :
“You have shown me correspondence dated 9-10-98 signed by me addressed to Mr. Thomas Mathew contained in File No. 15 seized from our premises and requested me to explain the same for which I state that I have informed Mr. Thomas Mathew that I have kept ready Indian rupees worth US $ 60,000 to be given to him. On your specific enquiry I state that this money was to be handed over to him as per the understanding between us. To your request I state that I and Mr. Thomas had reached an understanding that a part of the proceeds collected by me in cash over and above the bills raised on our customers would be accumulated and the same would be handed over in cash to Mr. Thomas Mathew.”
Further in his statement dated 19-12-1998 Shri Ravi Karumbaiah has stated the following :
“As the market for such western kitchen is quite competitive in India, particularly in Bangalore, our company being new in the field had to sustain. The limited margin of profit was estimated to be very low in such a severe competition. Therefore, Shri Thomas Mathew who is one of the Director of the Company and also our source of strength located at Kuwait suggested that the amount of Customs Duty payable on the goods imported could be brought out substantially to have a better margin of profit. Therefore he informed us that instead of importing directly from M/s. Veneta Cucine manufacturer of the said goods imported, viz., Kitchens, the goods could be routed through another front company of their own, so that overseas sale invoices could be prepared by themselves in the name of such front company so that invoice value for the purpose of Customs Duty and clearance would be lowered and customs duty could be saved to a large extent.”
Further in the same statement Shri Ravi Karumbaiah has said that -
“Shri Thomas Mathew used to settle the actual transaction value from the account of M/s. Proma SRL to M/s. Veneta Cucine of Italy. Shri Thomas Mathew used to receive the amount of differential from our firm in cash during his visit to India. This arrangement worked well and did yield good margin of profit for our firm. As I calculated, the amount of under-invoicing is around 65% by our firm.”
Shri Sanjeev Kabbur who was the ex-Marketing Manager in the appellant firm had given a statement under Section 108 of the Customs Act on 27-11-99. The following extract from Mr. Sanjeev Kabbur’s statement is revealing -
“I was aware that the documents in the name of Proma SRL were used only to present a lower CIF value for the purpose of assessment at the time of Customs clearance in India. As far as I know that the goods imported from Italy were under-valued by above 65% of the original Italian price and customs duty was paid in India on such manipulated prices.”
Shri Kabbur has also confirmed that part of the amount is collected by cash and the balance by cheque. Ms. Jagruty Sevak in her statement has confirmed the practice of collecting part of the amount from the Customers by cash. The documents seized indicate that the value declared for customs purposes is much less than the actual value. When Ravi Karumbaiah and Sanjeev Kabbur were confronted with the documents seized the entire modus operandi was revealed. Shri Karumbaiah has accepted that the undervaluation is to the extent of 65%. This has been corroborated by Sanjeev Kabbur. There is no evidence to show that the statements recorded under Section 108 of the Customs Act have been retracted. In other words, the contents of the documents seized have been corroborated by the statements of Karumbaiah and Kabbur. It is true that Thomas Mathew’s statement has not been recorded moreover, there is no evidence of any investigation conducted abroad. No doubt there are certain deficiencies in the investigations on account of the above facts. It should be borne in mind in the case of undervaluation like this, it is extremely difficult to attain mathematical precision. DRI officers do not possess a magic wand which would unfold the entire events which had taken place. On the basis of the available documents and the statements recorded during investigation, they have to come to a conclusion. In a quasi-judicial like this, we are concerned more with a pre-ponderance of probability rather than proof beyond reasonable doubt, as held by various judicial fora. On the basis of the available records, we are convinced that undervaluation to the extent of 65% has taken place. Shri Thomas Mathew has played a crucial role in this nefarious activity. After considering his submissions, we find he is trying to wriggle out of this case on the ground that the Show Cause Notice has not been served on him as per law. The Commissioner has dealt with this issue and we agree with this. S/Shri Ravi Karumbaiah and Thomas Mathew are liable for penalty under Section 112(a). The appellant M/s. CCEPL are liable for penalty under Section 114A of the Customs Act. The differential duty demanded is liable to be paid by them along with the interest. As regards, the imposition of penalty on Shri Sanjeev Kabbur, we find that he was an employee of the appellant-firm and he had acted under the directions of his bosses. There is no evidence to show that he personally benefited from the under-invoicing. In these circumstances, we set aside the penalties on Shri Sanjeev Kabbur. With these modifications, we confirm both the Orders-in-Original.
(Pronounced in Open Court on 27-12-2006)
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