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2015 (9) TMI 972 - CESTAT CHENNAI

2015 (9) TMI 972 - CESTAT CHENNAI - TMI - Improper importation of goods Confiscation of goods and Imposition of penalties Appellants made import of second hand printing machinery under fictitious names as actual user and same were sold in violation of EXIM Policy in open market Imported goods were confiscated and personal penalties were imposed under under Section 112(a) of Customs Act for contravention of FTP Policy and Customs Act Held that:- Commissioner in first imposed penalty on in .....

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established in present case Accordingly, appellants are liable for penalty however penalties imposed on respective importer-appellants are reduced Impugned order modified Appeals partly allowed Decided partly in favour of Appellants. - C/151/2005 to 160/2005 - Final Order No. 41090-41099/2015 - Dated:- 1-9-2015 - Hon ble Shri R. Periasami, Technical Member And Honble Shri P.K. Choudhary, Judicial Member ,JJ. For the Appellant : Ms. Indira Sisupal, AC (AR) ORDER Per R. Periasami All the .....

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er and the same were sold in violation of EXIM Policy in the open market. The Commissioner of Customs in his first OIO No.55/2000 dt. 25.8.2000 adjudicated the case, confiscated 74 numbers of machines and held that 354 no. of printing machines imported were liable for confiscation however, since the machines were not physically available, he imposed penalty on Shri D. Joseph, Prop.DJR Arts and also imposed penalties on the co-noticees. On appeal by the appellant, this Tribunal vide Final Order N .....

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Offset Printers, Sivakasi 75,000/- 4. M/s.Manuel Printers, Chennai 2,00,000/- 5. M/s.Maragatham Graphics, Chennai 3,00,000/- 6. M/s.Seven Star Offset Printers, Sivakasi 3,00,000/- 7. M/s.Thangaraj Printing Works, Sivakasi 2,50,000/- 8. M/s.Manoranjitham Printers, Sivakasi 1,75,000/ 9. M/s.Excellant Process, Chennai 1,75,000/- 10. M/s.Nancy Graphics, Chennai 3,50,000/- 11. M/s.Angel Micro System, Chennai 2,50,000/- Out of these 11 importers, only 10 have filed appeals before Tribunal barring M/s. .....

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ne appeared for the appellant nor any vakalat filed. Considering the appeals relate to the year 2005 and the appellants failed to respond to the several hearings fixed, we proceed to decide all the appeals ex-parte on merits based on the documents available on record. 4. Heard Ld. A.R for Revenue who reiterated the findings of the adjudication order. She submits that penalty has been rightly imposed on the appellants and the adjudicating authority ordered confiscation of 74 printing machines whe .....

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aders Vs CC Tuticorin 2010 (261) ELT 891 (Tri.-Chennai). 5. We have carefully considered the submissions of Ld. AR and also perused the grounds of appeals. These appeals filed for waiver of penalty imposed on the appellants under Section 112 (a) of the Customs Act. We have also perused the Tribunal's order dt. 21.12.2001 wherein specific direction was given to the Commissioner while remanding the case. The adjudicating authority has confiscated entire 370 second hand printing machinery and i .....

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d second hand machinery violating actual user condition which was investigated by D.R.I. We hold that appellants are liable for penalty under Section 112 (a). The Hon'ble High Court of Bombay in the case of Sophisticated Marbles and Granite Industries Vs UOI - 2004 (166) ELT 318 (Bom.) in an identical issue of import of second hand machinery held that penalty is imposable and dismissed the writ petition filed by the importers. The said judgement of Hon'ble High Court was upheld by the Ap .....

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uently obtain licence to cover up illegal imports then it would be a duty of writ Court to arrest such tendency prevailing amongst the importers of the goods. The Apex Court in the case of Her Shankar and Others v. Deputy Excise & Taxation Commissioner and Others [1975 (1) SCC 737] ruled that the writ jurisdiction of High Court under Article 226 of the Constitution of India is not intended to facilitate avoidance of legal obligation and to commit breach of law for the time being in force. Th .....

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gate the same. In the facts of this case the consignments confiscated by the Customs authorities cannot be allowed to be released on the licence which were sought to be produced by the petitioners. The importers who are importing goods without licence and then seek to validate the import by obtaining subsequent licence or licences cannot be allowed to take advantage of their own wrong. The petitioners are one of them." The above decision squarely applies to the facts of the present case. Th .....

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