TMI Blog2015 (10) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods was liable to be upheld – Authorised Signatory of M/s Shabnam stated that they have cleared quantity of 7200 imported POY to assesse without payment of duty – Hence, confiscation of goods and demand of duty were also liable to be upheld –There was no material available to impose penalty on brokers as they had no knowledge that goods were liable for confiscation – Taking into account overall facts and circumstances, Director and partner of Assesse-company and M/s Shabnam required to be waived – Demand of duty upheld except demand of Anti Dumping Duty – Confiscation of goods upheld and redemption fine reduced – Decided against Assesses. - Appeal No. : C/40-44,102-104,131/2007 - ORDER No. A/10747-10755/2015 - Dated:- 11-5-2015 - Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m and its employees. By the impugned order, the Adjudicating Authority confiscated the seized imported POY 51582 kgs under Section 111(d) of the Custom Act, 1962 and 7200 kgs of imported POY under Section 111(d) and 111(o) of Customs Act 1962 and as the goods were released provisionally on execution of Bond and Bank Guarantee, imposed redemption fine of ₹ 11,00,000/-. It has also confirmed demand of duty of ₹ 20,88,231/- on 51,582 kgs of POY on M/s Shailja and ₹ 3,07,263/- on 7,200 kgs of POY on M/s Shabnam and as the duty amount already deposited at the time of provisional release by the Shailja which was appropriated against the demand. It has also confirmed the recovery of interest. It has also imposed the penalty of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hailja. He particularly submits that the duty was not properly quantified, as the Anti Dumping Duty cannot be sustained in view of the order of the Tribunal in the case of Tonira Pharma Ltd Vs CCE, Surat - 2007(208)ELT.38 (Tri. Mumbai) held that Anti Dumping Duty would not form part of assessable value of goods for the purpose of levy of CVD and SAD. He also submits that POY is not prohibited item and confiscation of POY to the quantity of 51,852 kgs under section 111 (d) of Customs Act cannot be sustained. He relied upon the following decisions: a) Rutu Auto Gas Pvt Ltd Vs UOI - 2002.149.ELT.10 (Guj) b) EMC Data Storage Systems (I) Pvt Ltd Vs CC, Bangalore - 2008.227.ELT.99 (T.Bang.) c) Tanej Toners Pvt Ltd Vs CC (G), New Delhi - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as High Court, in the case of CC, Madurai Vs Fenner (I) Ltd - 2014(313)ELT.3 (MAD). He further submits that the demand is solely based on the statement of the director without corroborating any evidences, cannot be sustained, as held by the Allahabad High Court in the case of Commissioner Vs Sunil Kumar Gupta - 2015(315)ELT.A89 (All.) and in the case of CC Vs Vikram Cement Pvt Ltd - 2014(303)ELT.A82 (All.). He submits that penalty on the partner is not sustainable, once the firm has already been penalised, as held by the Hon ble Gujarat High Court in the case of CCE vs Jaiprakash Motwani 2010(258)ELT.204 (Guj.), and Pravin N Shah Vs CESTAT - 2014(305)ELT.480 (Guj). Penalty is not imposable on employees as held by the Tribunal in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended that the investigating officers should have demanded the duty from the broker. We are unable to accept the submission of the Learned Counsel, for the reason, that M/s Shailja had not placed any documents that they received the goods from the brokers except the statements. So the confiscation of seized goods is justified and consequent demand of duty on provisional release of goods is liable to be upheld. 9. Regarding the confiscation of POY to the quantity of 7200 kgs received from M/s Shabnam, the main contention of the Learned Advocate Shri Dhaval Shah is that it was demanded on the basis of statements. We find from the Adjudication order that the Customs officers during search at the factory premises of M/s Shabnam, found short ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of various provisions of the Customs Act 1962 and Exim Policy. So, the confiscations of goods are warranted. The Hon ble Gujarat High Court in various cases held that the penalties imposed on the companies are sufficient for waiver of penalty on the employees, Director and partners. So, the penalties imposed on the other two appellants are not justified. 12. We find force in the submissions of the Learned Counsel Shri Mukund Chouhan that the quantification of the demand of duty in respect of Anti Dumping Duty would liable to be examined in the light of the decision of the Tribunal in the case of Tonira Pharma Ltd (supra). It has been held that Anti Dumping Duty would not form part of assessable value of goods for the purpose of CVD and S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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