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2018 (3) TMI 1260 - CESTAT MUMBAIDEEC advance licences - diversion of imported goods - violation of actual user condition - penalties - Held that: - Shri Kamal Agarwal is Executive Director of a shipping agency, though as per his job, he is not supposed to handle the documents particularly related to advance licence. However, from the facts of the case, it is revealed that Shri Kamal Agarwal also conspired in the fraudulent availment of the benefit of advance licence for diversion of the goods in the domestic market. However, considering the overall role of Shri Kamal Agarwal, we find as per his responsibility towards the entire episode is limited. Accordingly he deserves some leniency - the penalty on Shri Kamal Agarwal reduced from ₹ 2,00,000/- to ₹ 1,00,000/-. As regards the appeal of Shri Harbhajan Singh Sandhu, we observe that he is the person who imported and cleared the goods by using the advance licence and the goods were diverted to domestic market. Therefore, he was directly involved in the fraud of advance licence and was the next gainer of the benefit derived from the said fraud. Therefore, the penalty imposed of ₹ 2,00,000/- on Shri Harbhajan Singh Sandhu is just and proper. Penalty u/s 114A of CA - Held that: - Once customs duty was confirmed under the proviso to Section 28, the ingredients to invoke Section 114A in relation to the entire duty stands invoked. Therefore, the Commissioner has gravely erred in not imposing the penalty of ₹ 3,47,48,553/- under Section 114A. - penalty enhanced. Appeal allowed in part.
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