Rachna Gupta ORDER
Dr. Rachna Gupta, Member (J)
1. Present appeal has been filed to assail the Order-in-Appeal No. 669/2021-22 dated 10.08.2021. The facts in brief are as follows:
2. The appellant is engaged in import of Cold Rolled Grain Oriented (CRGO) Electrical Steel Sheet/Coils. For import of CRGO Steel Sheets/Coils, BIS certificate is a mandatory requirement as per the Extant Steel & Steel Products (Quality Control) Order, 2018 issued by Ministry of Steel. The same is also mentioned in the instruction issued under F. No. 450/71/2014 dated 09.07.2014 by CBIC. Department initiated an investigation on the basis of information about forged/fake BIS certificates and accordingly, the premises (residential as well as official) of the appellant were searched on 01.03.2019 under respective Panchnamas. Vide the Panchnama of even date certain incriminating documents, import documents with one laptop were also resumed. Statements of persons concern were recorded.
3. The live import consignment imported by the appellant covered under Bill of Entry No. 2136252 dated 20.02.2019 in Container Nos. CXDU1024965, KMTU7380636, SEGU2269889, SEGU3128150 and TEMU0280442 were examined under Panchnama dated 06.03.2019 by the DRI officers. Option for warehousing of the goods was also given to the appellant. During examination of the goods of said import consignments, sticker bearing ISI mark - IS 3024:2006 along with other details of goods were found pasted on the CRGO Electrical Steel Coil. Doubting the said mark that the goods were detained for further examination. M/s. Nippon Steel & Sumitomo Metal Corporation made in Japan was also found mentioned on the goods though the goods were supplied by M/s. Tamaki Sangyo Co. Ltd., Japan. On being enquired from M/s. Nippon Steel as to whether the aforesaid BIS certificate has been issue by them in the name of M/s. Tamaki Sangyo Co. Ltd., they refused the same.
4. Holding the said mandatory certificate as fake/forged, the Show Cause Notice No. 6464 dated 28.08.2019 was served upon the appellant proposing the confiscation of the goods in the impugned imported consignment for the declared value of Rs. 1,13,26,839/- alleging the same to have been illegally imported vide Bill of Entry No. 2136252 dated 20.02.2019 by using fake/forged BIS certificate penalty was also proposed to be imposed. The said proposal was initially confirmed vide Order-in-Original No. 174/2019 dated 25.10.2019. The appeal thereof has been rejected vide the order under challenge. Still being aggrieved the appellant is before this Tribunal.
5. I have heard Mr. Sanjay Kumar, learned Counsel for the appellant and Ms. Tamanna Alam, learned DR for the department.
6. Learned Counsel for the appellant has submitted that appellant was importing CRGO Steel Sheets from various other countries then Japan through their CHA M/s. Orchid Logistics Pvt. Ltd. However, mainly they were importing from M/s. Tamaki Sangyo Co. Ltd. in Japan. All the import documents of the goods used to be sent by the appellant to their suppliers and hence, were sent to M/s. Tamaki Sangyo Co. Ltd. also through bank under letter of credit. On receipt of original import documents from bank the same were sent by the appellant to his CHA. It is thereafter, based on those documents that the CHA had filed the Bill of Entry No. 2136252 dated 22.02.2019 for the said goods. It is impressed upon that there was no fake document nor even the BIS certificate was fake. It is submitted that the statement of Mr. Manoj Kumar who prepared the BIS certificate, has wrongly been considered as admission. It was rather a practice because several details were to be filled by the appellant prior the issuance of the said certificate. Hence, those were used to be sent to the appellant in editable excel sheet form which used to be filled in by the appellant's staff only and thereafter the documents were sent to their supplier/exporter. It is after their verification that the process of getting those cleared through CHA used to be initiated. It is submitted that Commissioner (Appeals) has failed to consider the said defense. The order is accordingly prayed to be set aside and appeal is prayed to allowed.
7. Per contra learned DR has submitted that statement of Mr. Manoj Kumar is a clear cut admission as has rightly been observed by Commissioner (Appeals). Otherwise, also admittedly the BIS certificate bears no signature of any authority. No error has been committed while holding the said certificate as fake especially when M/s. Nippon Steel & Sumitomo Metal Corporation has also denied to have issued the said certificate for the appellant. The appeal is accordingly prayed to be dismissed.
8. After hearing the rival contentions and perusing the records, I observe and hold as follows:
8.1 The impugned consignment was detained and was proposed to be confiscated for want of the proper BIS certificate. This being a Bureau of India Standards certificate is issued by the respective Ministry in the favour of the manufacturer who further issues same to its buyers. Since the goods herein are CRGO Electrical Steel Sheet/Coils Section 17 of BIS Act, 2016 prohibit the import of goods without requisite BIS license and fulfillment of the conditions that the products should made the prescribed quality parameters/technical requirements of the relevant Indian standards and also should bear the standard mark. In the present case, it has come on record that the certificate on the impugned goods was the one bearing no. IS 3024:2006, whereas, as per Indian standards specification for CRGO the ISI mark at the relevant time, stood revised as IS 3024:2015 by the competent Authorities. Further, I observe that the employee of the appellant who was admittedly responsible for preparing the import documents including BIS certificate i.e. Mr. Manoj Kumar, Accountant of the appellant in his statement dated 7th March, 2019, admitted the recovered laptop to belong to him. He also admitted the documents retrieved there from to have been prepared by him including the excel work book named as BIS certificate saved in local disk of said laptop. Not only this, he also admitted for those excel sheets to be received in soft editable form of BIS/Mill Test certificates. Mr. Manoj Kumar could not depose about the sender of the formats of those certificates. The mail received for the same was also mentioned to have been deleted.
8.2 The proprietor of appellant Mr. Birender Prasad has admitted Mr. Manoj Kumar to be his employee and to have been involved in preparing of the import documents. The defense taken by him corroborates the admission made by Mr. Manoj Kumar that the certificates were used to be received in the form of editable formats. The proprietor could not explain about absence of revised ISI mark on the impugned goods. There is no denial that BIS certificate in the name of his supplier/exporter i.e. M/s. Tamaki Sangyo Co. Ltd. was issued by Nippon Steel & Sumitomo Metal Corporation, Japan. It is apparent on record that said M/s. Nippon Steel & Sumitomo Metal Corporation, Japan vide e-mail dated 05.03.2019, by their Assistant Manager, Mr. Nishant Singh conveyed that after thorough examination of the BIS/MTC certificate provided by DRI Office the same was found fake and was not genuine as was not issued by their company. Not only this, he also submitted, the template of original BIS/MTC certificate issued by their company i.e. M/s. Nippon Steel & Sumitomo Metal Corporation, Japan having three pages duly signed by him. Admittedly, the certificate in the present case bears nobody's signature. The investigating team has also reached the CHA of the appellant, Mr. Bharat Bhushan, the partner thereof has denied any knowledge about the certificate to be fake. He only deposed about receiving all imported documents from Shri Birender Prasad, the proprietor of the appellant and thereafter to process the import documents for the clearance of consignment.
9. With these observations, I am of the opinion that the documents on record do not support the defence taken by the appellant. The admission of Mr. Manoj Kumar, appellant's accountant, about preparing BIS certificates on their own on the editable formats procured rather stands corroborated from the email sent by the exporter about impugned certificate to be fake which otherwise does not bear signature of any competent authority. Hence, I hold that there is no infirmity in the findings arrived at by Commissioner (Appeals). Order is accordingly upheld. Consequent thereto the appeal stands dismissed.
[Order pronounced in the open Court on 06.07.2022.]
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