TMI Blog2006 (1) TMI 406X X X X Extracts X X X X X X X X Extracts X X X X ..... sued the following three Advance Licences : (1) Advance Licence No. 2147508 dated 17-8-94 (2) Advance Licence No. 2147509 dated 17-8-94 and (3) Advance Licence No. 2071767 dated 6-1-95 for import of certain quantities of polyester filament yarn which were quantified on the basis that, if polyester filament yarn used in the exported fabrics was 1 kg, the import entitlement under Advance Licence would be 1.1.kg. Another Advance Licence No. 2071825 dated 12-1-95 was also issued to the exporters. Under the belief that the quantum of exports and/or the composition of the exported fabrics was mis-declared to the Office of the Director General of Foreign Trade for the purpose of obtaining Advance Licences for an higher quantity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 and Advance Licence No. 2147509 dated 17-8-94 due to mis-declaration and also referred to the fact that the 3rd Licence No. 2147508 dated 17-8-94 was also liable to be cancelled as it was obtained by mis-representation. The notice was adjudicated by the Commissioner of Customs who confirmed duty demand of Rs. 25,37,223/- against the exporter (partnership firm) under the proviso to Section 28(1), imposed a penalty of Rs. 25 lakhs upon its partner Shri Arun D. Mehra in addition to imposing penalty of Rs. 13 lakhs and penalty of Rs. one lakh on the proprietor and employee respectively of the CHA, M/s. Amol Shipping Agency. Hence, these appeals by the exporter and Shri Arun D. Mehra. 2. We have heard both sides. The first issue is, whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s. Dharam Exports case decision is squarely applicable to the facts of the present case and hence, following the same, we set aside the duty demand confirmed against M/s. Vijeta International. 3. Ld. D.R s reliance on the Tribunal s order in M/s. Indian Potash Ltd. v. CCE [1991 (55) E.L.T. 236] to support his contention that filing of Bills of Entry by some person would not in itself be conclusive of their status as importers, is mis placed as in that case it was conclusively found that the import of muriate of potash by canalising agency was by MMTC and although some Bs/E had been filed by M/s. Indian Potash Ltd, they cannot be treated as the importers as the evidence on record undisputedly points to their status as handling agents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e weight of the finished export products declared on the original/duplicate copy of the Shipping Bill is less than that declared in the E.P. copies of the Shipping Bill) so as to get higher input output entitlements, is also not sustainable as the Shipping Bills are not relied upon in the list of documents annexed to the show cause notice and also for the reason that DGFT s cancellation of licence has been subsequently set aside and the issue as to whether the licences were correctly issued to the exporters has been remanded. The goods are therefore, not liable to confiscation and not liable to duty. 4. Penalty imposed upon the partner of the exporter is also not sustainable as the goods in question are not prohibited for export and hence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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