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Tini Pharma Ltd., Sai Shradha Shipping Agencies Pvt. Ltd., Jimmy @ Bhavin Timbadia And Charles Patrick Versus Commissioner of Customs (Import) Nhava Sheva

2016 (5) TMI 670 - CESTAT MUMBAI

Demand of Central Excise duty and Customs duty - Raw materials imported duty-free for export of the finished goods - diversion of consignments of goods meant for export to domestic area - Held that:- adjudicating authority has not considered the explanations given and the defence taken by the appellants before him while deciding the case. It has not even recorded a single line of reasoning as to why he is not accepting the defence raised by the appellants. It is also to be noted that there is no .....

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g authority to reconsider the issue afresh after following the principles of natural justice. - Appeal disposed of by way of remand - Appeal Nos: C/288, 311 & 316/2010 & E/429 & 535/2010 - A/87248-87252/16/CB - Dated:- 26-4-2016 - SHRI M V RAVINDRAN, MEMBER (JUDICIAL) AND SHRI C J MATHEW, MEMBER (TECHNICAL) For the Petitioner : Shri Anil Balani, Shri C. Subba Reddy and Shri S.P.Mathew, Advocates For the Respondent : Shri V.K. Singh, Special Counsel ORDER PER: M.V. RAVINDRAN: All these appeals ar .....

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ant, had imported raw materials without payment of Customs duty under licences, undertaking to export the goods manufactured out of such raw materials. On a detailed investigation it was noticed that the said goods cleared from M/s Tini Pharma Ltd. s factory were allegedly diverted to domestic area. 5. Learned Counsel appearing for all the parties as well as the learned Special Counsel would take us through the entire case records and emphasised their view that the issue is incorrectly decided t .....

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gone through the records of the case and the submissions made by the noticees, both written and oral. I find that: (1) There were cash vouchers bearing the name of M/s Tini Pharma recovered from the Mhape godown of PIC. These vouchers were made in respect of filling of drums with soapstone; they had job numbers and number of drums on them which tallied with the export invoice numbers and the actual number of drums figuring in the actual export consignment. This preliminary and vital evidence has .....

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;PIC" should have been there is illogical, as the godown itself belongs to PIC and only expenses that are recoverable should be specially identified. (2) Shri Srinivas Raju is a Tirupati based employee of M/s Tini Pharma, Shri Abhimanyu Singh is a Mumbai based employee of PIC. Both these persons have deposed to the effect that the export consignments were delivered at Mahim and not at Nhava Sheva. It is unlikely that both these persons would gain in anyway by giving such a statement. In abs .....

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d fabricated. In fact, the importer makes strenuous efforts to find /point out the supposed deficiency of the investigation instead of rebutting the allegations on merits; the latter course being obviously inconvenient to them. A design/attempt to evade duty is an activity which is done surreptitiously, secrecy and stealth are its covering guard. In such cases. direct evidence proving everything beyond doubt will be rarely forthcoming The standard of proof in such cases has to be on the basis of .....

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account for each and every kg that has been diverted to the local market; however, available evidence indicates that all the export goods have been sold to M/s Nimesh Pharma. M/s Tini Pharma is thus liable to pay Central Excise duties on the goods cleared under ARE 1 for export and later diverted to the local market. They are also liable for penalty u/s Rule 25 of Central Excise Rules read with Section 1lAC of Central Excise Act. Shri Bhavin Timbadia, Shri Charles Patrick and Shri Subramaniam D .....

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Central Excise duty on the goods diverted to the local market without payment of Central Excise duty. Accordingly they are liable for penalty under Rules 25 and 26 of CE Rules 2002 read with Section 1lAC of CEA '44. (6) The raw materials imported duty free valued at ₹ 3,25,53,353/- under DEEC licence have been imported under execution of a bond and are liable for confiscation u/s 111(o) of CA '62 as the conditions of the Bond has not been fulfilled. The resultant products manufact .....

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uyers. The filling of drums with soapstone powder was also done at his Mhape godown by his employees, Shri Abhimanyu Singh and Subramaniam Devar. The export goods were soapstone powder as against the declared Pharmaceutical Bulk Drugs and hence the same were also liable for confiscation u/s 113 of CA '62 and exporter M/s Tini Pharrna, Shri Charles Patrick and Shri Subramaniam Devar are liable for penalty u/s 114(iii) of CA '62. (8) The role of the CHA in this whole affair is not at all a .....

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r to have violated provisions of the CHA Licensing Regulations and this aspect may be taken up by the concerned authorities under the said regulations. (9) There is a proposal in the SCN to confiscate the goods exported by M/s Tini Pharrna as these were actually soapstone powder instead of the declared 'pharmaceutical products'. However, none of these goods are available for confiscation. The legal position is: when the goods are seized, the possession /custody of the goods is with the d .....

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