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TMI Blog2002 (5) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... g to that company, arrived at the gate, driven by Suresh Nayak, driver who was accompanied by Shri Avinash Kumar, an employee of the company. On being asked about goods loaded in the truck, they produced a set of documents, which were not found to be valid or relevant for the removal of the goods from the zone. The search of the truck revealed that it was loaded with 1,62,400 pieces of Compact Discs, to transport the same out of Customs Notified area of NEPZ. The removal of the CDs appeared to be clandestine and the same were seized along with the vehicle. The value of those CDs as per market survey was taken as Rs. 8,70,24,000/-. The driver of the vehicle Suraj Kumar Nayak also made a voluntary statement that owner of the company i.e. World Digital Sound Ltd., namely Mridul Nalwaya had directed him to take the impugned goods in the truck out of NEPZ area. Similarly, Shri Avinash Kumar made a statement that he was an employee of the company and Shri Nalwaya instructed him on telephone for loading the impugned CDs in the truck and the documents were given to him by Shri L.N. Bhardwaj, Manager of the Company. Thereafter, Shri Mridul Nalwaya came at the spot and made statement and dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of investigation, show cause notice was issued to the above mentioned appellants for confiscation of the CDs and imposition of penalty under various provisions of Customs Act, as detailed therein. After getting their replies and after hearing them, the Commissioner passed the impugned order. Show cause notice was also issued to Beer Sain, ASO who was posted in the NEPZ gate for having abetted the removal of the goods by the company M/s. World Digital Sound Ltd. in a clandestine manner, without payment of duty. He also, in his reply, denied his role but his version was not accepted and the Commissioner imposed penalty on him also of Rs. 2,00,000/- under Section 112 of the Customs Act. 3. The common contention, at the out set, raised by all the Counsels for the appellants, is that the provisions of Section 112(a) of the Customs Act, were not attracted, as the goods i.e. CDs removed by the factory premises of company M/s. World Digital Sound Ltd. from the NEPZ area, could not be treated as imported goods under the said section so as to order their confiscation. No customs duty could be charged in respect of those goods, rather only central excise duty could be claimed in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn in these cases, is not attracted to the facts of the case in hand. In the instant case, M/s. World Digital Sound Ltd., at the relevant time, was not only 100% EOU, but was also located and working in the NEPZ area, which was under the control of customs authorities being a bonded area. The clearance of the goods from that area i.e. bonded area could not be made by that company without discharging the customs duty under the Customs Act. Therefore, the provisions of Central Excise Act, for charging excise duty from them on the clearances were not attracted. The goods having been removed from the bonded area without paying appropriate customs duty under the Customs Act, by that company, had been rightly confiscated by the customs authorities. In none of the cases referred to above, such was the position, in a sense that 100% EOUs were working in the bonded area of the customs authorities. The units were located outside such a area and for that reason, it was observed in those cases that duty payable by those units on the clearances made in DTA could be subjected to central excise duty and not the customs duty. Therefore, the ratio of law laid down in those cases has got no applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Digital Sound Ltd. in the clearance of the goods from NEPZ area, without payment of duty. The penalty under Section 112(a), (b) of the Customs Act, had been rightly imposed on him. The ratio of law laid down in Haniff Shabbir Brothers v. C.C., Madras - 1997 (96) E.L.T. 27 (Mad.), referred to, by the Counsel, is not of any help to the appellant. In that case, the Tribunal set aside the order of the Board which was not even subject-matter of appeal before the Board. That order of the Tribunal was set aside by observing that the Tribunal could not attempt to set the clock back. The question of confiscation had gone beyond the reach and the Tribunal did not record any finding as to how and in what respect the order of the Board or the order of the Collector stood vitiated. But such is not the position in the case in hand. Beer Sain, appellant had been penalised under the provisions of Section 112(a), (b) of the Customs Act, for having been involved in the case as he had abetted the removal of the goods by the company M/s. World Digital Sound Ltd. from the customs bonded area, in a clandestine manner, without payment of duty. 8. The imposition of penalty on appellant L.N. Bhardw ..... X X X X Extracts X X X X X X X X Extracts X X X X
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