TMI Blog2016 (3) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... M. SALEEM, MEMBER (TECHNICAL) For the Petitioner : Shri G B Yadav, Advocate And Shri P Patankar, Advocate For the Respondent : Shri J Nair, Authorised Representative ORDER PER : MR.P.K. DAS, These appeals are arising out of a common order and therefore, all are taken up for disposal. 2. The relevant facts of the case in brief, are that one M/s Raj International claimed to be 100% EOU imported Ball Bearings and Polyester Fabrics. The Officers of Directorate General of Central Excise Intelligence (DGCEI), Mumbai, gathered information that the said M/s Raj International indulged in selling duty free imported materials in the local market and also forged the documents. After thorough investigation, it was found that the appellants herein were directly involved for evasion of duty. A show cause notice dtd 19.10.2005 was issued by the Asst. Director General of DGCEI, Zonal unit, Mumbai demanding duty, on import of duty free goods in term of license, which were not used for export purpose and diverted in the domestic market by M/s Raj International and to impose penalty on them amongst others including appellant herein. The Adjudicating Authority confirmed the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be sustained. He further submits that the DGCEI officers were appointed as Customs Officers by Notification No. 27/2009-CUS (NT) dtd 17.3.2009. He also referred to Section 28 of the Customs Act 1962, invoked for demand of duty in the show cause notice. He further drew the attention of the Bench to the provisions of Section 53 to 55 of the Customs Act. He relied upon the decisions of the Tribunal as under: 1. Mahindra Mahindra Ltd vs CC(I), Mumbai - 2014(312)ELT.545 (Tri. Mum.) 2. Skodab Auto India Pvt Ltd vs CC(I) JNCH, Nhava Sheva - 2014(313)ELT.600 (Tri. Mum.) 6. After hearing both the sides and perusal of the records, on the preliminary issue we find that M/s Raj International purchased the goods on high-seas sales basis from M/s Sai Impex. It is revealed from the Bills of entry for warehousing as placed by the Ld Counsel on behalf of the appellants that the port of import was Mumbai JNPT. It is seen from the Adjudication order that Shri PT Hudda, proprietor of M/s ACA (Customs House Agent) in his statement dtd 4.12.2002 stated that he had undertaken the import clearance on behalf of M/s Raj Internationals, SEZ, Sachin Surat, since August 2002; that so far as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional treaty or bilateral agreement between the Government of India and Government of a foreign country, a declaration for transhipment instead of a bill of transhipment shall be presented to the proper officer in the prescribed form.] (2) Subject to the provisions of section 11, where any goods imported into a customs station are mentioned in the import manifest or the import report, as the case may be, as for transshipment to any place outside India, such goods may be allowed to be so transshipped without payment of duty. (3) Where any goods imported into a customs station are mentioned in the import manifest or the import report, as the case may be, as for transhipment (a) to any major port as defined in the Indian Ports Act, 1908 (15 of 1908), or the customs airport at Mumbai, Calcutta, Delhi or Chennai or any other customs port or customs airport which the Board may, by notification in the Official Gazette, specify in this behalf, or (b) to any other customs station and the proper officer is satisfied that the goods are bona fide intended for transhipment of such customs station, the proper officer may allow the goods to be transhipped, without payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of duty free goods. Further, the very fact that he stood as Surety for an amount of ₹ 1.5 crore for M/s. Raj international and then organized diversion of goods makes it clear that Shree Ganatra had laid out a premeditated plan to be the party to the economic offence involved herein. Since, he was concerned with the goods which were liable to confiscation, his acts attract penalty under Section 112 of the Customs Act 1962. However, since he is not the registered persons against whom duty can be confirmed under Section 28(b) ibid, I hold that no penalty under Section 114A of the Customs Act 1962 can be imposed on him. Accordingly a penalty shall be imposed on him under Section 112 of the Customs Act 1962. ii) Penalty on Shree Sunil Agarwal of M/s. GB and Shree Ramnivas Agarwal of M/s. BD. As mentioned at appropriate place herein, no reply has been filed by these persons and their counsels had informed that they would be filing reply, but no reply has been filed by them. The department has discharged the initial onus by raising the allegations that they had dealt with the goods, Ball Bearings involved in the instant case. Therefore I Have to hold that the allegation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of the Customs Act 1962 has to be imposed on him. However, since Shree Nilesh is not the registered person against whom duty can be confirmed under Section 28(b) ibid. I hold that no penalty under Section 114A of the Customs Act 1962 can be imposed on them. 10. Shri G B Yadav, Ld. Advocate appearing on behalf of Shi Hasmukh Ganatra submits that he had given surety in respect of the bond executed by M/s Raj International. He had no knowledge of the alleged irregularities committed by M/s Raj Internationals. He further submits that he is not the beneficiary of the irregularities except furnishing of the surety for the bond and no penal provision should be invoked against the appellant. Shri Prashant Patankar, Ld Advocate, appearing on behalf of Shri Sunil Agarwal and Shri Ram Nivas Agarwal submits that the appellants are mere unregistered traders engaged in selling of ball bearings. He submits that during the normal course of trade one Shri Raju Mohatta of Kolkotta, proposed him to help him in selling imported ball bearings. He has assisted Shri Raju Mohtta for selling of the imported bearings. It is further submitted that the appellants had no knowledge from where the goods w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er business in so far as high-seas purchase, sale of goods in local market etc. We agree with the findings of the Adjudicating Authority that Shri Ganatra is the master mind of the entire episode and therefore the imposition of penalty is warranted. We have noticed that the importer had not filed appeal and there is no material available that the importer had paid the duty and therefore the quantum of penalty on Shri Ganatra is justified. 13. The penalty imposed on the other appellants ie., Shri Sunil Agarwal and Shri Ram Nivas Agarwal who were engaged in trading activity. We find that Shri Hasmukh Ganatra in his statement categorically stated that the purchase of imported goods were arranged by Shri Raju Mahotta of Kolkatta. The goods were delivered to Shri Sunil Agarwal and Shri Ram Nivas Agarwal who had arranged the finance and documents for the Bills of Entry in respect of high-seas sale agreements. All the documents were handed over by Shri Sunil Agarwal to M/s Raj International on the instruction of Raju Mahotta. The main grievance of the Ld Counsel that no statement of Shri Ram Nivas Agarwal was recorded. We find that both the appellants have common office and both are br ..... X X X X Extracts X X X X X X X X Extracts X X X X
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