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2014 (8) TMI 810 - AT - CustomsPenalty on the appellant who was attending to the day-to-day clearance work of the CHA and was authorised by a Power of Attorney for clearance of goods Exemption of Duty – diversion of the imported goods - argument that an employee working upon the instruction of the employers cannot be visited with a penalty - Held that:- Shri Dev Kumar Kapta was authorised by the importers and field bills of entry in self on behalf of the importers. He not only filed and cleared the imported goods on behalf of the importers knowing fully well the nature of imports but also fabricated the bills of entry used for diverting the goods meant for free distribution to earthquake victims in Gujarat to places outside Gujarat. Appellant has not merely acted as a paid employee of M/s Kandla Clearing Agency but as an active participant in the act of diverting imported goods meant for free distribution under exemption Notification No. 7/2001-cus. The duty free clearance of goods under this exemption notification was subject to condition (i), (ii), and (iii) of the Notification. As these conditions have not been fulfilled the seized goods become liable to confiscation under Sec. 111(0) of Customs Act 1962, as proposed in the show cause notice dt 26/3/2002 and correctly confirmed by the adjudicating authority. As the appellant has played an active role in import and diversion of imported goods conditionally exempted under Notification No. 7/2001-cus hence penalty is correctly imposable upon the appellant under Sec. 112 of the Customs Act 1962. However, looking to the value of confiscated goods (Rs 49.25 lacs and RS 15.26 lacs), and what could have been the intended benefits out of such diversion, it is felt that penalty of ₹ 25 lakh imposed by the Adjudicating authority is excessive. In the interest of justice, we reduce the penalty imposed upon the appellant from ₹ 25 lacs to ₹ 5 lacs under Se. 112 of the customs Act 1962 - Decided partly in favour of appellant.
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