TMI Blog1996 (10) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... s were heard together when Shri A.S. Sunder Rajan, learned Consultant appeared for all the appellants and Shri Jangir Singh, Departmental Representative appeared for the respondent Collector. This common order disposes of all these five appeals. 2. Shri Sunder Rajan, learned consultant stated that the duty payable in respect of the imported material in question has been paid. The goods were permissible for import under OGL. Section 112 of Customs Act,1962 will not be applicable unless the goods are rendered liable to confiscation. The goods in question had been released and were not available for confiscation. There is no provision for ordering the payment of amount of Rs. 10 lakhs as the value of the goods in question. The goods were not liable for confiscation. It was a simple case of amount of duty not levied and paid. They have since paid the duty amount and hence penal action was not warranted. He pleaded that the appeals be allowed. 3. The arguments were resisted by Shri Jangir Singh, Departmental Representative. 4. We have considered the submissions. We have perused the record. We find that the material in question was 245 Metric Tonnes of PVC Resin valued at Rs. 38 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Book was cancelled by that authority. Following the search, documents relating to the above transactions were recovered and statements recorded from Sarva Shri D.D. Agarwal, Managing Director, Dr. Rajat Gupta, Director, Shri G.P. Bhargava, Personnel Manager and Shri V.S. Krishnan, Sales Manager which confirmed the aforementioned sequence of events. 6. The statements recorded from the concerned persons mentioned above bring out the role played by each one of them in the transactions in questions, Dr. Rajat Gupta who is a Director of the company is the son of Shri D.D. Agarwal, its Managing Director. It was stated by Shri Agarwal in his statements dated 1-9-1990 and 3-9-1990 that the job relating to the placing of the import order for PVC Resin was looked after by his son, Dr. Rajat Gupta and that the latter also looked after local sales of the imported PVC Resin. He stated that he was aware of the export obligations under the Pass Book scheme which they had not fulfilled as they were not having an order in hand. Dr. Rajat Gupta admitted in his statement dated 1-9-1990 that the clearance of 245 M.T. of PVC Resins against the Pass Book without payment of duty was not proper and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h on the company was excessive by any standard. 8. The reliefs claimed in the appeals are inter alia the quashing of the order appropriating the amount of Rs. 21,73,159 as without jurisdiction. Quashing the order directing payment of Rs. 10 lakhs in lieu of confiscation as also of the imposition of penalty on the company and the individuals has been sought. 9. On a perusal of the impugned order it is seen that the Collector has remarked that since the parties have admitted their guilt, he was taking a lenient view of the matter. He had directed the amount of Rs. 26,73,159.75 deposited by them to be apportioned as Customs duty leviable on the goods imported by them. The objection to this does not merit any consideration. The goods had been cleared by them without payment of duty and the amount has been deposited by them to make good the duty not paid by them. Notice under Section 28 of Customs Act had been issued by the Assistant Collector. The appellants liability to pay the amount of duty had also been accepted by the Managing Director and Director. They had paid the amount. Collector passed the order appropriating that amount towards the duty due under Section 28 of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been fulfilled by them. Hence the goods became liable to confiscation. They could not, however, be confiscated as they were not physically available. The imposition of penalty on the appellant is fully justified. The same is upheld. In fact, we are of the opinion that the penalty amount is low and not commensurate with the offence. The payment of duty by the appellants is pursuant to the visit to their premises and carrying out checks of their records following receipt of intelligence that they had cleared the material in question without payment of duty and had not discharged the export obligation but sold their products in local market. But for such verification by the Directorate Officers, the duty would not have been paid and the appellants would have successfully evaded the duty . 12. The penalty imposed on the four individuals who have filed appeals is of Rs. 10,000/ each. Each of them was connected with the import and disposal of the goods and the non-observance of the export obligation cast on them. The explanation given of a bona fide mistake and a communication gap between them is too naive to be accepted. The executives and the Directors have handled three Pass Books, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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