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2015 (9) TMI 456 - MADRAS HIGH COURT

2015 (9) TMI 456 - MADRAS HIGH COURT - 2016 (334) E.L.T. 50 (Mad.) - Misuse of Advance license Goods diverted to domestic market Appellant and his associates were allegedly misusing license received under Advance License Scheme and were evading customs duty on imported goods by diverting goods imported duty free under license into local market without utilizing them for intended purpose Show cause notice was issued to appellant along with other persons proposing to confiscate goods, demand .....

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shed role of appellant Therefore, we find no justification in modifying order passed by Tribunal Order of Tribunal stands confirmed Decided against Appellant. - Civil Miscellaneous Appeal No.1235 of 2015 & M.P.No.1 of 2015 - Dated:- 26-6-2015 - R. Sudhakar And K. B. K. Vasuki, JJ. For the Appellant : Mr. Karthik Sundaram For the Respondent : Mr. A. P. Srinivas JUDGMENT (Judgment of the Court was delivered by R. Sudhakar,J.) Challenging the Miscellaneous Order passed by the Tribunal orderin .....

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osing to confiscate the goods, demand customs duty and levy penalty under Section 114A of the Customs Act. Since the appellant did not respond to the said show cause notice, the Adjudicating Authority granted an opportunity of personal hearing, for which also the appellant did not appear. Hence, the Adjudicating Authority after going through the records passed the following order: "(i) I hold that the illicitly cleared goods i.e. 46080 Kgs of imported Polyester yarn valued at ₹ 29,15, .....

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otification No.91/2004 - Cus., dated 10-9-2004 along with applicable interest under Section 28AB of the Customs Act 1962 read with the provisions of the aforesaid Notification. iii) I confiscate i.e., two consignments of Polyester Fabrics admeasuring 80465.34 Mtrs. (93265.4 SQM) valued at ₹ 15,15,314/- imported in the name of M/s.Narayan Impex under B/E No.883275 & 883276 both dated 29.02.2005 which were seized at Chennai Sea Port under 111(o) of the Customs Act, 1962. However I give t .....

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ai Sea Port under Section 28(2) along with applicable interest under Section 28AB of Customs Act, 1962 read with the afore said Notifications relevant Notification No.43/2002 - Cus. dated 19.04.2002 Notification No.91/2004-Cus. dated 10.9.2004 as applicable. v) I impose a penalty of ₹ 52 ,56,555 /- (Rupees Fifty two lakhs fifty six thousand five hundred and fifty five only) on M/s.Narayan Impex, along with Shri.Ramgopal Kudal and Shri Shyam Bihani under Section 114A of the Customs Act, 196 .....

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ated that penalty ought not to have been imposed under Section 114A jointly and severally. Before the Tribunal, the Department relied on the decision of the Tribunal dated 04.12.2014 in Order No.42226-42229 of 2014 in the case of M/s.Naranan Impex and others, associate of the appellant. The Tribunal, taking note of the adjudication order, which was confirmed in appeal, held that when the licence was obtained fraudulently for the purpose of importing goods and avoiding payment of duty, which has .....

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uthority demanded Customs duty and also confiscated the goods and imposed penalty on the importer M/s.Narayan Impex and also imposed penalty on the appellant and others. The appellant's prayer before the Commissioner (Appeals) is against the penalty of ₹ 52 ,56,555 /-. Since it is clearly established the entire advance licence has been obtained fraudulently, as has been clearly brought out in the Order-in-Original at p.23, prima facie, as the role of Shri Ram Gopal Kudal has been estab .....

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arned Standing Counsel appearing for the respondent and perused the materials placed before this Court. 6. We find from the order of the Authorities below that the appellant did not appear before both the lower Authorities as well as before the Tribunal. Even though personal hearing was granted twice to the appellant, the appellant did not appear before the Authorities below. Hence, on the basis of the records, the lower Authorities passed the order. We find no error in the order of the Tribunal .....

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ent of duty under the Advance Licence Scheme and to divert them into local market. 7. It is seen that having failed to appear before all the three authorities, for the first time before the Tribunal, the plea that Section 114A does not apply has been raised. We find that Section 114A provides penalty for short-levy or non-levy of duty in certain cases, which reads as follows: SECTION 114A . Penalty for short-levy or non-levy of duty in certain cases. - Where the duty has not been levied or has b .....

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nder sub-section (8) of section 28, and the interest payable thereon under section 28AA, is paid within thirty days from the date of the communication of the order of the proper officer determining such duty, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent of the duty or interest, as the case may be, so determined : Provided further that the benefit of reduced penalty under the first proviso shall be available subject to the condition that .....

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ed to be payable is increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, the benefit of reduced penalty under the first proviso shall be available if the amount of the duty or the interest so increased, along with the interest payable thereon under section 28AA, and twenty-five percent of the consequential increase in penalty have also been paid within thirty days of the communication of the order by which such increase in the duty or interest .....

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d to the credit of the Central Government prior to the date of communication of the order referred to in the first proviso or the fourth proviso shall be adjusted against the total amount due from such person. 8. In the show cause notice issued, in paragraph No.5, it was stated as follows: i) the goods i.e. two consignments of Polyester Fabrics admeasuring 80465.24 Mtrs. (93265.4 SQM) valued at ₹ 15,15,314/- (PMV ₹ 49.66 Lakhs) imported in the name of M/s.Narayan Impex under B/E No.8 .....

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