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M/s Hi-Tech Fertifoods Pvt. Ltd., Indian Metals & Chlorides, Dinesh Shantilal Shah, Intensive Agri Development Pvt. Ltd., Babulal Shantilal Shah, Preeti Dinesh Shah, Shri Balwinder Arora Versus Commissioner of Customs (Export, Nhava Sheva

2016 (3) TMI 937 - CESTAT MUMBAI

Imposition of penalties - Section 114AA of the Customs Act, 1962 - Export of potassium chloride declaring them as calcium chloride hence, mis-declaration - Held that:- Since Shri Babulal Shantilal Shah and Ms. Preeti Dinesh Shah are not playing any active role in day to day functioning of the firms which sold “potassium chloride” to Shri Balwinder Arora, the penalty cannot be imposed on them under Section 114AA ibid - The penalties imposed on Shri Balwinder Arora needs to be reconsidered by .....

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t conclusion as to of the appellants were aware of the facts or otherwise. - Matter remanded back - Appeal No. C/960 to 966/12 and C/1006/12 - Order No. A/86716-86723/16/CB - Dated:- 22-3-2016 - MR. M.V. RAVINDRAN, MEMBER (JUDICIAL) AND MR. C.J. MATHEW, MEMBER (TECHNICAL) For the Petitioner : Shri S.N. Kantawala, Advocate And Shri V.M. Doiphode, Advocate For the Respondent :Shri V.K. Singh, Spl. Counsel ORDER PER: M.V. RAVINDRAN All these appeals are directed against Order-in-Original No. 17/201 .....

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appeals are filed by other appellants against the penalties imposed on them under the provisions of Section 114AA of the Customs Act, 1962:- (a) Appeal No. C/960/12 - Hi-Tech Ferti Foods Pvt. Ltd. (b) Appeal No. C/961/12 -Indian Metals & Chlorides (c) Appeal No. C/962/12 - Dinesh Shantilal Shah (d) Appeal No. C/963/12 - Intensive Agri Development Pvt. Ltd. (e) Appeal No. C/964/12 - Babulal Shantilal Shah (f) Appeal No. C/965/12 - Preeti Dinesh Shah (g) Appeal No. C/966/12 -Kirti Shantilal S .....

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after two months of passing of order-in-original, the adjudicating authority has issued a corrigendum to the order-in-original by incorporating that the penalty imposed on M/s Prima Trading Co., is also under Section 114(i) of the Customs Act, 1962 along with penalties under Section 114AA. He would draw our attention to the paragraph No. 95(a) and submit that the adjudicating authority has recorded that he is not imposing any penalty under Section 114(i) and 114(iii) as proposed in the show-cau .....

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evidence. It is his submission that the penalty was proposed under Section 114(i) and 114(iii) of the Customs Act, 1962 in the show-cause notice and the words not imposed as recorded by the adjudicating authority does not mean that he has dropped the proceedings under the said provisions and the corrigendum is only stating the facts of the imposition of penalty under both the Sections. 6. Learned Counsel Shri V.M. Doiphude appearing for other appellants would submit that in the case of Appeal .....

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ar that she is a sleeping Director/partner of the Intensive Agri Development Pvt. Ltd., hence no active role can be attributed to these two persons for imposition of penalties under Section 114AA of the Customs Act, 1962. 6.2 As regards penalty imposed on other appellants it is his submission that the findings of the authority are very sketchy and are totally incorrect inasmuch as the penalties had to be imposed on these appellants is based upon the statement recorded on Shri Balwinder Arora whi .....

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2015 (317) ELT 145 (Tri. Del.) relying on the judgement of J & K Cigarette Ltd. - 2009 (242) ELT 189 (Del.) lays down the law that cross-examination if asked for should be granted if reliance is placed on such a statement. He would also submit that the Hon ble High Court of Gujarat in the case of Mahek Glazes Pvt. Ltd. v. Union of India - 2014 (300) ELT 25 (Guj.) has stated that if request for cross-examination is made, it has to be dealt with separately and cannot be rejected in the adjudi .....

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not be a reason for setting aside the penalties. It is his submission that there is a clear acceptance by Shri Balwinder Arora that all these appellants were aware of the fact that potassium chloride was being exported under the curb of calcium chloride , hence penalties imposed are correct. 7. We have considered the submissions made at length by both the sides and perused the records. 8. As regards the penalties imposed on Shri Babulal Shantilal Shah and Ms. Preeti Dinesh Shah we find from th .....

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mposed under Section 114AA on these two appellants. On these findings, we set aside the penalties imposed on these two appellants. 8.1 As regards the appellant Shri Balwinder Arora, we do find from the records that the adjudicating authority has imposed penalty under Section 114AA as per the adjudication order and subsequently issued corrigendum to include the imposition of penalty under Section 114(i) of the Customs Act. In our view, if the adjudicating authority wants to impose further penalty .....

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nd sprit by the adjudicating authority before coming to a conclusion. The provisions of Section 138B of Customs Act have been incorporated by various decisions of the Hon ble High Court, more specifically, in the case of Basudev Garg & Ors. v. CC - 2013-TIOL-464-HC-DEL-CUS. Recently, Delhi Bench of this Tribunal in the case of CCE Delhi v. Kuber Tobacco India Ltd. in Final Order No. 50938-50942/2016 dated 04.03.2015 has considered the provisions of Section 9B and Section 138B of the Central .....

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