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2015 (7) TMI 300 - CESTAT KOLKATA

2015 (7) TMI 300 - CESTAT KOLKATA - TMI - Penalty u/s 112 of the Customs Act,1962 read with Section 114A of the Customs Act, 1962 - Held that:- Revenue could not place any judgement contrary to the decision of Tribunal in P. C. Chakraborty's case (2010 (6) TMI 398 - CESTAT, KOLKATA). - Following the same - Penalty is set aside - Decided in favour of Appellant. - Cus. Appeal No. 152/06 - Dated:- 13-3-2015 - D M Misra, Member (J),J. For the Appellant : Shri K K Sanyal, Consultant For the Responden .....

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on, it was revealed that the Advance Licence facility had been allowed to the manufacturer exporter, whereas the importer, M/s AGM Overseas Exports even though a merchant exporter representing themselves as manufacturer exporter, tampered with import licence and accordingly, the goods were cleared by furnishing 25% Bank Guarantee, instead of 100% Bank Guarantee, as applicable to the merchant exporter. Further, it revealed that the Appellant had received all the documents through one Shri S. L. S .....

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the papers and effecting any import through the Appellant on behalf of M/s AGM Overseas Exports, later, a show-cause notice was issued proposing penalty under Section 112 of the Customs Act,1962 read with Section 114A of the Customs Act, 1962. On adjudication, the ld.Commissioner (Appeals) has imposed penalty of ₹ 10.00 lakhs on the Appellant under Section 112 of the Customs Act, 1962. Hence, the present Appeal. 3. At the outset, the ld.Consultant appearing for the Appellant submits that .....

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corded by the Department, no further investigation was carried out. He fairly accepts that the Appellant had not filed any reply to the show-cause notice rebutting charges labeled on him. He submits that on similar circumstances, this Tribunal in the case of P. C. Chakraborty Vs. Commr. of Customs (Port), Kolkata reported in 2011 (263) ELT 462 (Tri.-Kolkata) , dropped the penalty against CHA. 4. The ld. A. R. appearing for the Revenue, reiterates the findings of the ld.Commissioner (Appeals). He .....

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Licence in respect of 100% Mulberry Raw Silk. Subsequently, as per the Revenue, the goods were not used for a specified purpose, and sold in the market. The contention of the Appellants is that they had nothing to do with diversion of the goods after clearance. It is also submitted that as per the Revenue, the Advance Licence was in the name of M/s. Rozer Overseas as merchant exporter with the name of a supporting manufacturer, as M/s. Khurshid Alam and Sons. In such cases, the importer has to f .....

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erned with tampering of the Import Licence or in respect of diversion of the goods after import. It is also submitted that there is no evidence that the Appellants had any knowledge regarding tampering of the Import Licence before presenting to the Customs Authorities or the intention of the importer regarding diversion of the goods, hence not liable for duty. 4. Contention of the Revenue is that during investigation, summons were issued to the importer, which were received back with the postal .....

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ter and in such case the importer is liable to furnish a bank guarantee of 100% of the duty. The goods were not used for specified purpose and the Licence was subsequently cancelled by the Directorate General of Foreign Trade. As the importer is not traceable and the Appellants had not made any effort to produce the importer before the Investigating Officer, they are liable for penalties. 5. We find that the case of the Revenue is that the Appellants entered into a conspiracy with the importer t .....

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