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2023 (7) TMI 1070 - AT - CustomsLevy of Penalty - import of Gold - allegation is that the importer through its authorized handler i.e. Appellants have deliberately contravened provisions introduced by the Government of India for regulating import of gold into India - HELD THAT:- The facts are very clear that one Shree Ganesh Jewellery House (I) Private Limited imported five consignments of gold of 100 kgs each and five initial Bills of Entry for Ex-bond warehouse were filed by the importer through Appellant No.(2) and thereafter, Appellant No.(1) filed five Ex-bond Bills of Entry for clearance of 80 kgs of gold each for home consumption on payment of duty. The gold was kept in private bonded warehouse of the importer and the Appellant No.(3) has provided service for safe custody of the gold, which is on record. The gold was imported in terms of RBI Circular dated 14.08.2013. As per the said Circular , 20% of every lot of import of gold imported to the country is exclusively made available for the purpose of exports and balance of domestic use, which means out of total imported gold, 80% can be cleared for home consumption, which were assessed and allowed on payment of duty and 20% of the gold was cleared to the importer in terms of Notification No.56/2000Customs dated 05 .05.2000 wherein all the demand was exempted with the condition that the importer shall, after processing the said gold, reexport the same - The Appellant No.(1) & (2) filed Ex-bond Bills of Entry and for home consumption, after clearing the gold, the job of the Appellant No.(1) & (2) came to an end. They have nothing to do with the gold in question. As they have cleared the gold first to the importer on bonded warehouse and thereafter, cleared for home consumption on payment of duty. These are not in dispute. In these set of facts, there is no role of the Appellant No.(1) & (2) to allege that they have made gold liable for confiscation for non-fulfillment of export obligation by the importer - Thus, the penalties on the Appellant Nos.(1) & (2) cannot be imposed under Section 112 of the Customs Act, 1962. With regard to Appellant No.(3), the duty of the Appellant No.(3) is to safe custody of the imported gold, which is a private bonded warehouse of the importer and while assessing the Bills of Entry for ex-bond warehouse, the goods were allowed to be stored in the Bin provided by the appellant for safe custody of the gold. Thereafter, the Appellant No.(3) has handed over 400 kgs of gold on duty paying documents by Appellant No.(1) i.e. not in dispute - It is the facts on record that the importer was nominated agency and the same was allowed to the importer for export production under exemption Notification No.56/2000-Customs dated 05.05.2000 under their own internal documents and it was the duty of the importer to submit a consolidated monthly account of the goods released exporter wise and duly duty involved while will be worked on the basis of effective rate of duty - thus, it is very much clear that the job of the appellant is mainly safe custody of the gold in question and as per the agreement executed between the importer and the appellant from time to time, the appellant’s duty was assigned for storage of duty free gold and silver imported by the importer for export purposes. Thus, it is very much clear that the appellant cleared the gold to the importer, who provided Bin warehouse to the importer for further processing to export of the same. The allegation in the show-cause notice is that as the importer could not fulfill the export obligation, therefore, the appellant was responsible for diversion of the said gold into domestic market. There is no evidence available on record that how the appellant was involved in diversion of gold by the importer - the appellant being a duty assigned to keep safe custody of duty free gold in their Bin, cannot be held liable for diversion of gold by the importer in domestic market and for non-fulfilment of export obligation. Therefore, the penalty on the Appellant No.(3) is also not imposable. Penalties set aside - appeal allowed.
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