TMI Blog2007 (12) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... In terms of the above-mentioned Orders, penalties have been imposed on S/Shri G. Venu and Srikanth respectively. The appellants Shri G. Venu is imposed with the following penalties in OIO 03/2007. (i) Rs. 1,00,000/- under Section 114; and (ii) Rs. 50,000/- under Section 112(a). In respect of OIO 05/2007, the appellant G. Venu is imposed with the following penalties : (i) Rs. 40,00,000/- under Section 114(iii) (ii) Rs. 20,00,000/- under Section 112(a). The appellant Srikanth is imposed with the following penalties in terms of OIO 03/2007 : (i) Rs. 1,00,000/- under Section 114(iii); and (ii) Rs. 50,000/- under Section 112(a). 3. In terms of the above impugned orders, the appellants are required to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been made. The remittances had not been received from the buyers in the foreign countries. In this case also the foreign remittances were arranged by Shri G. Venu. The intention is to show these remittances as export proceeds. The learned Commissioner in both these cases has found that the appellants are liable to penalty under Section 114(iii) of the Customs Act and also under Section 112(a) of the Customs Act. The learned Advocate who appeared on behalf of the appellant have raised various legal contentions. It has been argued that both the units were controlled by one Shri J.S. S.V. Prasad. The appellants pleaded that they did not know anything about the exports and the exports were not made by them. Shri Srikanth had stated that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. The learned authority has erred in seeking to levy penalty under Section 112(a) of the Act. Section 112(a) has no application since remittances through bank account are not an import within the meaning of the Act. It is not import of currency. Merely because Section 120 of the Customs Act is invoked it does not make any impact on the issue involved. Section 120 provides for confiscation of smuggled goods notwithstanding any change in form. No question of confiscation arises as no goods are available for confiscation. Hence Section 120 has no application. FEMA had come into force on 1-6-2000. The FEMA does not contain any section in contrast to Section 67 of FERA by which offences provided under FEMA are deemed to be Notification of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the entire amount of penalty. On behalf of Shri G. Venu also similar contentions were made. 8. The learned DR narrated the events leading to the passing of the impugned order and requested the Bench to put the appellants to terms. 9. On a very careful consideration of the issue, we find that the fraudulent exports have been effected by M/s. Pearl Pharma and also M/s. Help Line and the Kingpin in all the transactions appeared to be one Mr. J.S.S. V. Prasad. In any case as far as the appellants are concerned, the main allegation against them is that for certain commission. They helped the exporters and arranged remittances from abroad by using their contacts. The remittances were deposited in the accounts opened by them and later the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed under Section 112(a), it is seen that the foreign remittances had come to India only through banking channel. The adjudicating authority himself has recorded that these foreign remittances have nothing to do with the export of the goods. Under these circumstances it is very difficult to sustain the confiscation of the foreign remittances which have been received in the country through banking channels. Even if there is any violation of FEMA no action can be taken under the Customs Act as violation under FEMA cannot be automatically violation under Section 11 of the Customs Act. In these circumstances, we order full waiver of the penalty imposed under Section 112(a) of the Customs Act. As regards the penalties imposed under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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