ORDER :

1. Delay Condoned. Having regard to a short point involved, we have heard learned counsel for the parties finally at this stage itself.

2. These appeals are directed against the Judgment and Final Order No. A/87852/2018 dated 06.11.2018 in Appeal No. C/1132/2007 and Miscellaneous Order No. M/85887/2019 dated 17.07.2019, in Customs Miscellaneous Application No. 85189/2019, as passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai¹ [Hereinafter referred to as ‘the Tribunal’] whereby the Tribunal partly allowed the appeal against the Order-in-Original passed by the Commissioner of Customs (Import), Mumbai dated 28.09.2007, upholding the recovery of differential duty from the appellant to the tune of Rs. 20,31,302/- on imported hydraulic pumps under Section 28 of the Customs Act, 1962² [Hereinafter referred to as ‘the Act of 1962’/’the Act’] and rejected the application for rectification.

3. Shorn of unnecessary details and briefly put, the relevant background aspects of the matter are that M/s David Brown Hydraulic Ltd., U.K.³ [Hereinafter referred to as ‘the manufacturer’] was in the business of manufacturing hydraulic pumps. The appellant had initially approached them to secure authorized distributorship but, the request was declined because M/s S&H Universal, London⁴ [Hereinafter referred to as ‘the supplier’] had already entered into contract for sole distributorship for India and South East Asia. Subsequently, the appellant entered into a sub-dealership arrangement through the supplier.

3.1. The matter in issue pertains to the period 2001-2003, when the appellant cleared shipment of hydraulic pumps manufactured by the said manufacturer and imported from the supplier.

3.2. A Show Cause Notice⁵ [‘SCN’ for short] dated 26.09.2006 was issued to the appellant under Section 124 of the Act of 1962 on the allegation that the appellant had under-invoiced the bills of hydraulic pumps imported from the supplier during the years 2001 to 2003. The dispute arose owing to the fact that same goods were imported by the sister concern of the appellant, namely, M/s Shashi Charu Hydraulics Pvt. Ltd. at a higher price, albeit directly from the manufacturer. Therefore, the appellant was called upon to show cause as to why the goods valued at Rs. 76,05,649/- should not be confiscated, differential duty of Rs. 20,31,302/- should not be recovered, and penalty should not be imposed.

3.3. The Commissioner of Customs (Import), Mumbai, in his order dated 28.09.2007, held that the appellant had under-invoiced the goods imported from the supplier and rendered itself liable to the consequences. The learned Commissioner, accordingly rejected the declared value of goods; re-determined the assessable value of goods; ordered recovery of differential duty along with interest; ordered confiscation of goods and imposed redemption fine in lieu of confiscation; and also imposed penalty on the appellant and its directors. The relevant parts from the Order-in-Original dated 28.09.2007 could be reproduced as under:

“24. In these circumstances, I am of the view that the importer made a vain attempt to justify the under-invoicing of the subject pumps on the basis of list price and distributor's price. In the instant case, the comparison was not in the import price and the list price, but in the two imports of the importer itself, one from the trader/distributor at a lesser price and another from the manufacturer which is at a higher price. Rule 5 of the Customs Valuation Rules cle