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2021 (10) TMI 856 - CESTAT MUMBAIManufacturing process taking place or not - aluminium alloy ingots - affixation of brand name - exemption under N/N. 93/2004-Cus dated 10th September 2004 - HELD THAT:- The scheme has been designed in furtherance of export promotion strategy and require compliance with ‘actual user condition’ with any sale or transfer of the imported goods or the goods manufactured therefrom permissible only after completion of the ‘export obligation’ prescribed in the licence issued by the Director General of Foreign Trade. It is on record that the said obligations have not been fulfilled with and the sole issue pending before the licensing authority is the clubbing of the licences. Hence, by the clearance of the goods, the condition in N/N. 93/2004-Cus dated 10th September 2004 has been complied with in its breach for which the duty liability is the logical corollary as found in the adjudication order. Entitlement to adjust the duty discharged on clearance of the goods against the duty liability arising from the impugned order - HELD THAT:- No doubt, the proposition sounds attractive and equitable but, nonetheless duty liability had been discharged under Central Excise Act, 1944 whereas the duty confirmed in the impugned order, including additional duties, are leviable under Customs Act, 1962 and Customs Tariff Act, 1975. In accordance with the provisions of Central Excise Act, 1944, any adjustment of duties paid thereunder is allowable only upon sanction of refund of the same It is not on record that such refund has been sanctioned. There is, therefore, no reason to heed this particular submission. Confiscation of goods - HELD THAT:- Though the goods are liable for confiscation under section 111(o) of Customs Act, 1962 for breach of post-importation condition, confiscation itself is not tenable in law. The finding in the impugned order that the decision in WESTON COMPONENTS LTD. VERSUS COMMISSIONER OF CUSTOMS, NEW DELHI [2000 (1) TMI 45 - SC ORDER] would apply owing to the execution of bond does not find favour as the security therein was an earnest of the assurance of the goods being made available for confiscation during the adjudication proceedings; the bond security offered in the present instance is in relation to the conditions of import generally - even in the face of records of clearance on payment of duties of central excise, the suppression insofar as Customs Act, 1962 is concerned cannot be detracted from. Consequently, the penal liability under section 114A of Customs Act, 1962 is sustained. Penalty on the Director of the company, Mr Hitesh Shah - HELD THAT:- The finding in the impugned order is deficient in ascertaining the exact role of the appellant-Director in the diversion, other than by his position in the company, is concerned - the decision in JAYAKRISHNA ALUMINIUM LTD. VERSUS COMMISSIONER OF CUSTOMS, CHENNAI [2005 (4) TMI 379 - CESTAT, CHENNAI] would require an adjudicating authority to render a clear finding of the specific role of the individuals against whom penalty is imposed and the lack thereof in the impugned order renders the imposition of penalty on the Director to be inconsistent with law - the personal penalty on Mr Hitesh Shah is set aside. Appeal disposed off.
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