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2017 (5) TMI 593 - AT - CustomsUndervaluation of imported goods - Brass Scrap, Electrolytic Copper Wire Bars/ Rods, LLDPE etc - ITC violation - mis-declaration of importer's relationship with the suppliers - non-existent importing firms - Confiscation - penalty - Held that: - it is very much clear that the intention of the supplier as well as importing firms were not bonafide. M/s Donald did not come forward to show as to how they have entered into contracts with these non existing firms - Even during investigation or in adjudication process the bonafides of these firms could not be proved - The Appellant had been taking a ground that not having an IEC code is a procedural requirement but does not entitle the imported goods liable for confiscation. However it is to be seen that it is not the case of simply non availability of IEC Code but also that the importing firms were non existent which shows that the goods were intended to be imported improperly and thus making them liable for confiscation. The sale proceeds of the export goods cannot be remitted to the Appellant M/s Donal Macarthy. Moreover, no evidence of sale of the good were brought on records. Even if it is assumed that the imported goods in question has been disposed of by the custom/custodian, this is not the subject matter of this appeal, hence the issue, of sale of the goods and it's proceed, can not be entertained in the present appeals. Penalty on M/s Donald Macarthy and its Directors - Held that: - the said appellant concern and its directors were solely responsible for sending goods to India in violation of customs laws. Hence the penalties were rightly imposed upon the appellant company and it's directors. Penalty on other two appellants Shri Deendayal Didwania and Shri Navneet Kumar Didwania - Held that: - during searches no incriminating documents were found and no contumacious conduct or evidence has been brought on record which can show involvement of the said persons in importation of impugned goods. No instance has been brought to show that the Appellants attempted to clear the imported goods. Though some of the past consignments might have been cleared by these two appellants, however we find that no violation in import of those goods has been alleged - The only piece of evidence relied upon for imposing penalties on these two appellants is copy of auction notice issued by BPT in respect of consignments of Marvel Impex. We find that firstly, this is a public auction notice of BPT, secondly, investigation could not establish any wrong doing on the part of these appellants with reference to the said public auction notice - penalties cannot be imposed. Appeal allowed - decided partly in favor of appellant.
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