TMI Blog2014 (11) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... etained at 248 only but the serial nos. of the bearings were modified. In other words, as per the original licence read with the import list, only 248 nos. of bearings were physically incorporated in the export product and only these were eligible for duty free import under the said licence. From the records, it is seen that this quantity of bearings had already been imported by May, 1999. Therefore, as per the policy, no further bearings could have been allowed to be imported against the said licence. Therefore, endorsement made on 8-12-1999 by the licensing authority in the duplicate licence issued on 22-11-1999 allowing import of 4248 nos. of bearings was not permissible under the EXIM policy as it stood at the relevant time. The advance licence, which was subject to actual user condition and which had expired on 21-5-1999 and which was non-transferable was sought to be revalidated and made transferable, and items which were not permissible to be imported were sought to be included by both changing the description of the goods and the value thereof by misrepresentation and fraud. To achieve these objectives, false Chartered Engineer’s certificate were procured and submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s mandatory. Inasmuch as we have upheld the demand for duty, the penalty of equivalent amount under Section 114A is also confirmed and upheld. - licence was with an actual user condition and was non-transferable. The goods imported were seized after having been diverted. The notification stipulates use of goods in the product exported. Thus if the goods are imported in violation of the conditions of exemption and the licence issued for the purpose, they are liable to confiscation under Section 111(o) of the Customs Act and consequently penalty is also imposable - Following decision of Commissioner of Customs v. CESTAT, Chennai [2009 (4) TMI 83 - MADRAS HIGH COURT] - Decided against assessee. - C/754-755, 807, 887-894, 806, 844-845, 956-957 and 963-971/2004 - Final Order Nos. A/326-350/2012-WZB/C-I(CSTB) - Dated:- 7-5-2012 - Shri Ashok Jindal, Member (J) and P.R. Chandrasekharan, Member (T) Shri J.C. Patel, Vipin Kr. Jain, Vishal Agarwal, Durgesh Nadkarni, S.P. Mathew, Manish Panda, Anil Balani and Ms. Purnima Singh, Advocates, for the Appellant. Shri Sanjay Kalra, Appraiser (AR), for the Respondent. ORDER These appeals are directed against Orders-in-Original C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Overseas, Rajkot 6601, 6593, 6572, 6606 6565, all dated 15-12-1999 and 8667, dated 19-8-1999 347 2. Naman Enterprises, Navi Mumbai 8670, dated 19-8-1999 60 3. Shalin Enterprises, Thane 6586, dated 15-12-1999 78 4. Nippon Bearings Pvt. Ltd., Thane 6592 6577, dated 15-12-1999 240 5. Devanti Overseas 6579 and 6598 dated 15-12-1999 234 6. Ankit International, Thane 8719, 8711 8629, dated 19-8-1999 178 2.1 Investigation further revealed that after clearance from Mumbai, the goods had been transported to Delhi and the goods were lying in the godown of M/s. Delite Cargo Carriers, Delhi. The goods were examined by DRI, Delhi and 1018 pcs of bearings collectively valued at ₹ 1.38 Crore (Market value) found lying there was seized on 28-12-1999 under the provisions of Section 110 of the Customs Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was shown as ₹ 3,52,96,940/- and they exported the goods in 1997 and the DEEC book was audited and returned in 1997 to the licence holder. The licence holder later caused imports in 1997, 1998 and 1999. By letter dated 27-9-1999, the licence holder sought issue of duplicate licence for un-utilized part of value of the licence amounting to ₹ 13,97,029/- after its reported loss. However on 13-10-1999, the licence holder made application when the original validity period of the licence had expired and re-validation was based on the ground that there was a delay in return of the audited DEEC book whereas the fact was that the audited DEEC book had already been returned in 1997 itself. Thus the re-validation was sought by mis-representation of facts. (6) The original licence dated 22-11-1996 covered import of 248 pieces of bearings and the amendment sheet No. 5, dated 11-5-1999 was obtained based on mis-representation with regard to the Sr. No. of the bearings. The original Sr. Nos. of the bearings used in the export product were 207, 208, 210, 212, 217, 22312, 22315, 22317 and 22318 with prefix/suffix 256 pieces bearing of Nos. 23052, 23044, 23064 and 23060 were cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th M/s. Amrit Laxmi Machine Works and Sri Brahmachari, Director of the said firm. Shri Vakharia introduced Shri Ashwin Mehta of Nippon Bearings to S.P. Shah. Mr. Mehta offered to pay premium by way of price for the sale and transfer of the advance licence dated 22-11-1996 for the balance value of the said licence which was available at ₹ 27,34,557/- and also agreed to bear all necessary expenses in getting the licence transferred. (b) Later Shri Mehta informed Mr. Shah that the bearing listed in the licence had no market value and hence it will have to be amended. Thereafter, a memorandum of understanding dated 12-2-1999 was signed by Shri Mehta, Jitendra Vakharia and S.P. Shah in the presence of Shri N.K. Brahmachari. Shri Mehta paid a sum of ₹ 50,000/- by way of cheque of Nippon Bearings as advance which was later encashed on 8-4-1999 by the original licence holder. The non-transferable licence was transferred by the licence holder to M/s. Nippon Bearings India which is a partnership firm of M/s. Shalin Vohra, Ms. Namrata Shalin Vohra and Sri Ashwin Mehta. (c) The other related firms operating from the same premises of Nippon Bearings India are - (1) Nip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration and M/s. Nippon Bearings Ltd. to facilitate customs clearance of the goods free of duty. (g) The bearings covered by the amended list dated 11-5-1999 had already been shipped from Dubai on 20-3-1999 (even before amendment of the licence) and two bills of entry were filed by M/s. Amrit Laxmi Machine Works through CHA M/s. East West Freight Carriers covering 256 nos. of bearings and 16 nos. of bearings were cleared on payment of duty as they were in excess of the quantity of advance licence. These were imported by M/s. Nippon Bearings and in view of non-transferability of the hcence, high seas sale agreements were entered into. The customs clearance and delivery of the goods were taken by Shri Ashwin Mehta and Sri Manharlal Vora from the CHA. (h) In order to account for the bearings on the high seas sales in the books of accounts, two debit notes dated 29-4-1999 were issued by Shri Ashwin Mehta in the name of Nippon Bearings Pvt. Ltd. and Shalin Bearings Corporation and in pursuance thereto M/s. Amrit Laxmi Machine Works issued 3 cheques in favour of M/s. Nippon Bearings and M/s. Shalin Corporation. Since the imports were actually made by the above two firms, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 248 nos. to 4248 nos. and the description of bearings covered by the licence was changed from specific nos. to generic description. Quantity of other items was also increased. However, on DRI s report, the D.G.F.T. vide amendment sheet dated 24-12-1999 cancelled transferability, revision in the list of imports as also the validity period of the licence and restored the duplicate licence to the originally issued licence as amended upto amendment sheet No. 5, dated 11-5-1999. In other words, both the enhancement in quantity and value made at the time of issue of duplicate licence as also the description of the bearings eligible for importation made at the time of issue of duplicate licence was cancelled. The period of validity of the licence was only upto 21-5-1999. (o) Subsequent to the issue of duplicate licence on 22-11-1999, the licence was made transferable on 9-12-1999 in terms of para 7.27 of Handbook of Procedures 1997-92. After receipt of the licence by M/s. Amrit Laxmi Machine Works, it was transferred to M/s. Ankit International vide letter dated 14-12-1999. (p) M/s. Ankit International apart from utilising part of the licence for imports, also transferred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.5 At the time of seizure of 1018 pcs. of bearing in Delhi 28-12-1999 and 3-1-2000, goods covered by another 29 Bills of entry were pending clearance in Mumbai under the very same duplicate advance licence No. 0111434, dated 22-11-1999. One bill of entry No. 6603, dated 15-12-1999 filed for clearance of 47 nos. of bearings was assessed to duty under Notification No. 31/97 and duty of ₹ 42,267/- assessed was paid on 18-12-1999. Another 28 bills of entry as detailed below were pending assessment. Clearance in these cases was sought duty free under Notification 31/97 against advance licence No. 0111434, dated 22-11-1999. Importer s name B/E No. date Quantity of bearings (nos.) CIF value in Rs. M.M. Corporation 8485, dated 20-12-1999 39 118205 -do- 8478, dated 20-12-1999 70 388432 Nippon Bearings (India) 8438, dated 20-12-1999 48 272536 Nippon Bearings Pvt. Ltd. 8443 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 100 440399 10771, dated 28-12-1999 50 220200 Shravan Enterprises 10773, dated 28-12-1999 75 417835 10789, dated 28-12-1999 50 220200 2033 9752540 2.6 A show cause notice dated 26th July, 2000 was issued to the importers, CHA, original licence holder and other persons connected with the transactions in respect of the above 29 bills of entry proposing to :- (1) Confiscate the bearings under importation under the provisions of Section 111(d) of the Customs Act, 1962 read with the Foreign Trade (Development Regulation) Act, 1992 and under Section 111(m) of the Customs Act; (2) Impose penalties under Section 112(a) and/or 112(b) of the said Customs Act; (3) Reject the CIF value declared in respect of bills of entry No. 8429, dated 20-12-1999, 10783 and 10770 dated 28-12-1999 and to fix the CIF value at US $ 2670.20, 32832 and 4299.90 respectively on the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods be assessed to duty on merits. He imposed varying penalties under Sections 112(a) and 112(b) on the noticees except four of them on whom he imposed varying penalties under Section 112(a) alone. He dropped the penal action against Shri J.K. Vakharia. 2.9 It is against these orders that the appellants are before us. 3. The ld. Counsel for M/s. Nippon Bearings Pvt. Ltd. and other importers involved in the matter made the following submissions :- (1) All the imports in respect of which demands have been made vide order dated 31-5-2004 is concerned, the same were made prior to suspension of Advance Licence No. 03014593. As regards the demand confirmed vide order dated 29-6-2004 is concerned, out of 18 bills of entry, only 4 bills of entry were filed after the date of suspension of the aforesaid licence and in all the remaining cases the bills of entry have been presented prior to the licence being cancelled. (2) The case of the revenue is that the licences have been amended by misrepresentation of facts before the D.G.F.T. authorities. This by itself is not enough to deny then the benefit of duty free import against advance licences or render the goods liable fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ountry and not the date of arrival of the goods at an Indian port. Para 15.5 of the policy provides that in case the goods are exported by sea, it is the date of Bill of lading which is to be taken as relevant date. In all the imports made in the instant case, the Bill of Lading is much prior to November 30, 1999 and consequently all imports were within the validity period of the licence and were eligible for benefit of the same. (6) The goods being eligible for benefit of licence, the order of confiscation and consequent penalties do not survive. Even otherwise, confiscation under Section 111(d) was not warranted as the goods were freely importable and there is no prohibition imposed by or under Customs Act or any other law for the time being in force against import of the same. In so far as confiscation under Section 111(m) is concerned, as the imported goods correspond in respect of value as also other particulars with the entry made under the Act, there is no violation under the said section. As regards Section 111(o) is concerned, the same is not sustainable as there was no post-import condition subject to which the exemption has been granted which stood violated. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of original or duplicate advance licence. They had acted in the capacity of Customs House Agent for clearance of the goods after obtaining valid IEC code and authorizations from the importers and all the declarations relating to imports were made by the concerned importer (which was attached to the bills of entry) for whom they had undertaken the clearance work. After completing the customs formalities, the imported goods were handed over to the respective transporters. Their action was in consonance with the settled law in the matter of Thawerdas Wadhoomal reported in 2008 (221) E.L.T. 252 which was upheld by the Hon ble High Court reported in 2009 (240) E.L.T. A143 (Bom. - H.C.) It is further submitted that the appellants were issued with three show cause notices wherein similar proceedings were involved. Of the 3 notices, one notice was finally decided by this Tribunal in Order Nos. M/177-182/WZB/2007/CSTB, dated 20-3-2007. In the said order, penalty on the appellant and its director Sri Colombowala was set aside. The appellant relies on this decision in support of their plea that they are not liable to any penalty. 3.3 Sri Ashok Jhaveri in his written submissions dated 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,468/-. Amend sheet No. 5, dated 11-5-1999 was obtained by Sri Ashwin Mehta by producing a fraudulent certificate dated 5-5-1999 issued by the Chartered Engineer Mr. J.A. Bharwada and the said certificate was obtained by Shri Shailesh Doshi. Bearings either having series nos. shown in the original list or the ones having the sr. shown in the amendment sheet only could have been used in the export product and not both of them. 4.2 Though after imports made in May, 1999, no balance of bearings were left in the original licence, duplicate licence in lieu of the original was issued for 4248 nos. of bearings. The said duplicate licence was issued with revalidation on 22-11-1999 with the endorsement that the total validity will not exceed 36 months from date of issuance of the licence. Since Original licence was issued on 22-11-1996, its validity already expired on 21-11-1999. Thus the duplicate was issued one day after its expiry. 4.3 Even value of licence shown on duplicate licence was ₹ 50,05,468/- and vide amendment dated 9-12-1999, its value was enhanced to ₹ 1,91,33,433/-. Even the licence was made transferable vide endorsement dated 9-12-1999 after its expiry on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held by Hon ble Apex Court in 2005 (187) E.L.T. A31 (S.C.); (6) Munjal Showa Ltd. v. CCE, Faridabad [2009 (246) E.L.T. 18 (P H)]. 4.8 Ld. AR refers to the admissions made by Shri Ashwin Mehta in statement recorded under Section 108 of the Customs Act as per which Shri Mehta informed M/s. Amrit Laxmi that the bearings listed in their licence had no market value and hence it would have to be amended. Accordingly MOU dated 12-2-2009 was entered with S.P. Shah of Amrit Laxmi and Jitendra Vakharia (broker of advance licence). Thus the non-transferable licence was de facto transferred to M/s. Nippon bearing. Sri Mehta along with Sri Shantilal Doshi of Nippon Bearings got amendment sheet 5 dated 11-5-1999 from D.G.F.T. by producing a fraudulent certificate dated 5-5-1999 of Shri J.A. Bharwade. Sri Mehta and Sri M.H. Vora admitted that they advised Shri Brahmachari, Director of Amrit Laxmi for the said amendments and enhancement of value and quantity with assistance of Sri Ashok Jhaveri, Licence broker. Sri Mehta prepared the CE certificate with the knowledge of Sri Brahmachari and got it signed by the Chartered Engineer Sri Ullal. Sri Mehta and Sri Vora used Shri Nilesh Doshi to create ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. AR s submissions, the ld. Counsel for the appellant importers submits that the decisions relied upon by the ld. AR for revenue were dealing with cases where forgery was involved in respect of documents submitted for obtaining the licence. None of the said decisions related to dealing with licences obtained by misrepresentation of facts before the Licensing authorities. Therefore the facts of the cases are different from those involved in the present case and hence they cannot be relied upon. They reiterated their arguments detailed in para 3 above. 6. We have carefully considered the rival submissions. 6.1 We have perused the copy of the Advance licence which is the subject matter of dispute in the present case. The said Licence No. 03014593 was issued to M/s. Amrit Laxmi Machine Works on 22-11-1996 with a CIF value of ₹ 50,05,468/- and was valid for a period of 12 months. The F.O.B. value of exports to be achieved against the said licence was fixed at ₹ 3,52,96,940/-. As per the list attached to the said licence, 248 nos. of bearings (23 specified varieties) with a CIF value of ₹ 9,22,110/- was allowed to be imported with the following specifications : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 22318 1 22330 2 22340 1 23044 44 23052 62 23056 80 23060 31 23064 23 Total 248 The amendment further stated - There is no change in total quantity of bearings allowed and in the total CIF value of the licence. Individual CIF value restriction shown against each import item stands deleted. Import will be made within the quantity mentioned against each import item and within the overall CIF value of the licence . The above amendment was obtained on the basis of a Chartered Engineer s certificate dated 5-5-1999 issued by Mr. J.R. Bharwada who stated the above bearings or equivalent of these have been used in the exports shipment of machines vide shipping bill No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agraph 7.25 above, the duty free licence holder (except the Special Imprest Licence, Advance licence with actual user condition issued in terms of paragraph 7.4 of the Policy and Annual Advance Licence) shall be allowed transfer of licence, by the licensing authority. The concerned licence holder may transfer : (a) The licence in full, if no imports have been made; (b) The licence in part, excluding the quantity and value of imports already made; and (c) The materials or the balance thereof already imported. (ii) Upon endorsement of transferability, issue of duplicate licence, enhancement in the CIF value or amendments including re-validation shall not be allowed. (iii) Upon endorsement of transferability, a duty free licence shall be valid for the balance period of its validity or for a period of six months, whichever is later. However, licences submitted for endorsement of transferability after 30 months of the issuance of the licence shall have a validity upto a maximum period of 36 months from the date of issuance. 6.9 In the instant case, it is on record that the original licence was lost in September, 1999. Hence the said licence could not have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvance Licence is not transferable even after completion of export obligation. 6.13 The original licence dated 22-11-1996 permitted import of 248 nos. of bearings of specified serial nos. Vide amendment sheet dated 11-5-1999, the number of bearings eligible for import was retained at 248 only but the serial nos. of the bearings were modified. In other words, as per the original licence read with the import list, only 248 nos. of bearings were physically incorporated in the export product and only these were eligible for duty free import under the said licence. From the records, it is seen that this quantity of bearings had already been imported by May, 1999. Therefore, as per the policy, no further bearings could have been allowed to be imported against the said licence. Therefore, endorsement made on 8-12-1999 by the licensing authority in the duplicate licence issued on 22-11-1999 allowing import of 4248 nos. of bearings was not permissible under the EXIM policy as it stood at the relevant time. Further as per para 7.3, the licence could not have been made transferable since the advance licence is subject to actual user condition and it is non-transferable even after completio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter and strikes at its very authority to pass any order and such a defect cannot be cured even by consent of the parties. Applying the ratio to the facts of the present case, in the case advance licences with actual user condition, the Exim policy prohibited transferability even after discharge of export obligation. Therefore, if the licensing authority endorses transferability on such a licence, the said action seriously offends the public policy and hence the same is void ab initio. So is the case with respect to revision of list of items for import under the advance licence. Only materials which are physically incorporated in the export product or consumables used in the manufacture of export product is permitted to be imported under the advance licence. Therefore, the licensing authority cannot permit any items for import duty free under the advance licence which do not satisfy the above condition. If any such endorsement is made, the same violates the public policy and such endorsement is void ab initio. 6.17 The Hon ble Apex Court had an occasion to examine and deal with fraud in Commissioner of Customs (Preventive) v. Aafloat Textiles P. Ltd. [2009 (235) E.L.T. 587 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted and used and the licence was exhausted was withheld; the fact that the importer is not going to be the actual user was withheld; thus the entire facts were misdeclared and misrepresented and a duplicate licence was obtained. These actions on the part of the appellants in the instant case clearly satisfies the definition of fraud as defined by the Hon ble Apex Court and the licence so obtained becomes void ab initio. 6.18 The purpose and object of issue of advance licence is for duty free imports, subject to actual user condition as stated in paragraph 7.3(a) of the Exim Policy. Such licences are exempted from payment of Basic customs duty, Surcharge, Additional Customs Duty, Anti-dumping duty and Safeguard duty, if any. Therefore in order to avail the benefit of advance licence, such a licence should be valid at the time of assessment of customs duty. The relevant date for determination of rate of duty and customs valuation is the date of filing of bill of entry. Therefore, at the time of filing the bill of entry, a valid Advance licence in the name of the importer should exist for availing the benefit of duty free import under the said licence. 6.19 In respect of 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been valid only up to the end of the month, that is, 30-11-1999. Therefore, on these two dates also, there was no valid licence in the name of the importers so as to enable them to avail the benefit of the advance licence. Therefore, in respect of all the imports made in this case, there was no valid advance licence in favour of the importers at the time of importation and therefore, the denial of benefit of exemption under Notification No. 31/97-Cus., dated 1-4-1997 was correct in law and we uphold the same. 6.21 The ld. Counsel for the appellant has strongly argued that the appellants are entitled for duty exemption inasmuch as the licence was made transferable and the licence stood cancelled only on 24-12-1999. Therefore, the imports made prior to this date are eligible for duty exemption. He has submitted that the licence in this case is only voidable and not void and has relied on a number of decisions of the Hon ble Apex Court and Hon ble Bombay High Court. In the Sneha Sales Corporation case decided by the Apex Court, relied upon by the ld. Counsel, it was held that in a case where the licence is obtained by mis-representation or fraud, it is not rendered non est as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the provisions of Section 15 of the Customs Act, 1962, that is, on the date on which the bill of entry is filed. Therefore, in order to avail the benefit of duty exemption, there should be valid advance licence in the name of the importer at the time of filing of the bill of entry. In the instant case we have already held that no such licence existed and accordingly, we reject this contention. 6.23 The next issue for consideration is whether the goods imported under the aforesaid advance licences vide 44 Bill of Entries covered by the two orders dated 31-5-2004 and 29-6-2004 and part of which was seized at Delhi on 28-12-1999 and 3-1-2000 are liable to confiscation under the provisions of Section 111(d), 111(m) and 111(o) of the Customs Act, 1962 as held by the adjudicating authority. Under Section 111(d) any goods which are imported or attempted to be imported or are brought within the Indian Customs waters for the purpose of being imported contrary to any prohibition imposed by or under this Act or any other law for the time being in force shall be liable to confiscation. Section 111(m) deals with goods which do not correspond in respect of value or any other particular with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to confiscation under Section 111(d) and we hold accordingly. Therefore, we uphold the confiscation of the goods as held in the above two orders. 6.24 The importers have been given option to redeem the goods by payment of fine under Section 125 of the Customs Act, 1962. While imposing the fine, the adjudicating authority has kept in mind reduction in the market value of the goods, deterioration of the quality of the goods, reduction in the rates of the duty, demurrages incurred and after taking into account these facts into consideration, he has imposed a redemption fine which is approximately 10% of the CIF value of the goods. Considering the fact that bearing is an item which fetches high premium in the market, the redemption fine imposed by the adjudicating authority in the instant case cannot be said to be unreasonable. Therefore, we uphold the redemption fine imposed by the adjudicating authority in lieu of confiscation in the above two orders. 6.25 The adjudicating authority has also confirmed the demand of differential duty amounting to ₹ 65,78,106/- in respect of the 15 bills of entry covered in order dated 31-5-2004 by denying the benefit of Notification No. 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to do any act, which act or omission would render such goods liable to confiscation under Section 111 or abets the doing or omission of such an act. Penalty under Section 112(b) is imposed when a person acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111. The penalty imposable in the case of dutiable goods other than prohibited goods is an amount not exceeding the duty sought to be evaded on such goods or ₹ 5,000/- whichever is greater. The penalties imposed on the various persons involved are much less than the ceiling prescribed. Since it is a case of organized racket in advance licensing scheme with an intent to evade huge amount of Customs duty by suppression and fraud, we are of the view that no leniency needs to be shown in the instant case with respect to the quantum of penalty imposed on the appellants. Accordingly, we uphold the penalties imposed on all the appellants under Sections 112(a) and 112(b) of the Customs Act, 1962. The importers (transferees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 18 lakhs for his efforts as per the records before us. Therefore his connivance in the entire matter is clearly established and he is liable to penalty and we hold accordingly. 6.28 As regards the liability to confiscation of the goods and consequent penalty, we rely on the decision of the Hon ble High Court of Madras in Commissioner of Customs v. CESTAT, Chennai [2009 (240) E.L.T. 166]. The facts involved in that case was the respondent therein imported four consignment of copper scrap totally weighing 86.963 MTs in four containers and availed benefit under Notification No. 48/99-Cus., dated 29-4-1999 which permitted import duty free under the annual advance licence with actual user condition. The licence was obtained by fraud inasmuch as the appellant did not have any factory for manufacture of goods as envisaged in the licence. The respondent contested that the goods are not liable to confiscation under Section 111(o) as there is no misdeclaration in the import documents and consequently there is no liability to penalty. The adjudicating authority held the goods liable to confiscation and imposed fine and penalty. The same was challenged before the Tribunal which held that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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