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2011 (3) TMI 1192 - AT - CustomsBreach of Notification No. 80/95-Cus dated 31.3.95 - Demand of custom duty, interest and penalties - invoking extended period - as per dept. assessee willfully suppressed the factum of non-utilization of the duty-free goods with mala fide intention to evade duty of Customs - Held that:- Where the taxable event is 'import', the tax has to be paid by the importer. Therefore, the importer is the person chargeable with the duty on the goods imported and presented under the Bill of Entry. Accordingly, to hold that the liability to pay duty, in the present case, is on the appellant. It is not in dispute that the bank guarantee was encashed by the department way back in 1997. There is nothing on record to show that it was encashed at the instance of the appellant. As rightly submitted by the learned SDR, the encashment of bank guarantee cannot be deemed to be a voluntary payment of duty by the appellant. Therefore, the appellant cannot claim immunity from penalty or fine on the alleged ground of payment of duty prior to issuance of show-cause notices. As rightly pointed out by the learned SDR, breach of condition (v) of Notification No. 80/95-Cus by the appellant attracted Section 111 (o) of the Customs Act and, consequently, the goods imported by him were liable to confiscation. The goods were, no doubt, not physically available for confiscation as they had been cleared duty-free and diverted long back. However, it is not in dispute that the clearance of the goods at Customs was allowed against bond and bank guarantee. That being so, the non-availability of the goods would not stand in the way of the adjudicating authority imposing redemption fine under Section 125 of the Act. The appellant, as importer, cannot claim immunity from penalty after having cleared the goods duty-free under the exemption notification and diverted the same in gross breach of a condition thereof. The appellant, by his conduct, rendered the goods liable to confiscation and rendered himself liable to penalty. Hence the penalty imposed on 'M/s Global Art' under Section 112 of the Act in the Chennai case is, therefore, liable to be sustained in principle. Given the assessable value of the goods to be approximately at Rs 30 lakhs, we reduce the penalty to Rs 1,00,000/- . The penalty imposed on Mr. Bimal Kumar Mehra in the Chennai case is set aside. In the Mumbai case the penalty on Mr. Bimal Kumar Mehra is not liable to be vacated though it calls for reduction, in the circumstances of the case, to Rs 10,000/-. Breach of conditions of the notification made the appellant liable to pay the duty with interest in terms of the bond. Therefore, the demand of interest on duty confirmed against the appellant, in the Chennai case, has to be upheld and it is ordered accordingly.
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