TMI Blog2017 (5) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... able for confiscation. The sale proceeds of the export goods cannot be remitted to the Appellant M/s Donal Macarthy. Moreover, no evidence of sale of the good were brought on records. Even if it is assumed that the imported goods in question has been disposed of by the custom/custodian, this is not the subject matter of this appeal, hence the issue, of sale of the goods and it's proceed, can not be entertained in the present appeals. Penalty on M/s Donald Macarthy and its Directors - Held that: - the said appellant concern and its directors were solely responsible for sending goods to India in violation of customs laws. Hence the penalties were rightly imposed upon the appellant company and it's directors. Penalty on other two appellants Shri Deendayal Didwania and Shri Navneet Kumar Didwania - Held that: - during searches no incriminating documents were found and no contumacious conduct or evidence has been brought on record which can show involvement of the said persons in importation of impugned goods. No instance has been brought to show that the Appellants attempted to clear the imported goods. Though some of the past consignments might have been cleared by these tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bers. Further that the Appellant M/s Donald Mcarthy Pte Ltd, and its directors Shri Vinodkumar Didwania Smt. Nidhi Didwania exported the impugned goods from Singapore. The adjudicating authority passed the impugned order on the ground that members of Didwania family were involved in importing the said goods in violation of Foreign Trade (Development Regulations) Act, 1962 rendering the goods liable to confiscation under Section 111 (d) of the Customs Act. That the exporting firm and its directors were aware of the fact that they were exporting goods to fictitious firms in India thereby abetting imports who neither retire the import documents nor cleared the goods. As a result the imported goods were confiscated under section 111 (d) and penalties were imposed under Section 112 (a). Further the Adjudicating authority held that M/s Donald Macarthy are not the owner of the goods and rejected the request for reshipment. The aggrieved Appellants are before us in subject appeals. 3. The Ld. Counsel, Shri Anil Balani appearing for M/s Donald Macrathy, Shri Vinod Kumar Didwania and Smt. Nidhi Didwania submitted that the goods has been confiscated under Section 111 (d) on the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by passing unjustifiable delay in adjudication. That the department could not produce any detail of the sale although matter was argued on different dates. That without placing the details of sale proceeds the penalty cannot be quantified and imposed on Appellants. He relies upon the judgment of Northern Plastics 1999 (113) ELT 3 (SC) and Chandra Kriplani 2002 (149) ELT 537 (T) as upheld and reported in 2008 (227) ELT A68 (SC). 4. Shri Sujay N. Kantawala, Ld. Counsel appearing for the Appellants Shri Deendayal Didwania and Shri Navneet Kumar Didwania, submits that penalty under Section 112 (a) has been imposed wrongly. The show cause notice does not bring any evidence on record to prove that either of the said two Appellants in relation to the impugned goods, omitted to do any act or ommission which allegedly would render the consignments liable for confiscation. The representatives of the CHA had stated that in past the Appellants gave them the documents and duty amount to take delivery of goods. The past consignments were cleared on payment of duty and hence it has been assumed that the two Appellants were concerned with the clearance of impugned consignments. No factual e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts that the claim of the Appellant that since the importing firms refused to clear the goods, the title remained with M/s Donald Macarthy is incorrect as no evidence was produced that the importing firms refused to take the delivery. Secondly no documents were sent through banking channels but were directly sent to notified parties, thereby transferring the title of goods to notified parties. That therefore the claim for re-shipment/ re-export did not merit any consideration. Thirdly it is submitted that in absence of IEC code the goods are liable for confiscation. He submits that it was contended by the Appellants that since the importing firms did not pay for the goods nor paid the price the supplier would be owner of the goods. That in such case M/s Donald Macarthy would be considered as importer as given in Section 2(26) of the Customs Act. Since M/s Donald Macarthy did not have IEC Code the goods cannot be imported and are liable for confiscation. He submits that the reliance placed by the Appellant on judgment in case of Sampat Raj Dugar 1992 (58) ELT 163 (SC) is not applicable as in that case the import was valid and the importer had participated in adjudication proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t had been taking a ground that not having an IEC code is a procedural requirement but does not entitle the imported goods liable for confiscation and has cited judgments in support of their contention. However it is to be seen that it is not the case of simply non availability of IEC Code but also that the importing firms were non existent which shows that the goods were intended to be imported improperly and thus making them liable for confiscation. The possession of Import-export Code is one of the prerequisite for clearing the goods in terms of provisions of FT (DR) Act, 1992. As per Section 7 No person shall make any import or export except under an Inporter-Exporter code number granted by the Director General or the officer authorized by the Director General in this behalf in accordance with the procedure specified in this behalf by the Director General Further in terms of Rule 18 of the EXIM Policy the IEC shall be granted by the competent authority and no import-export shall be made by person without such code. It is thus a precondition for effecting import or export of goods. Coming to the facts of the present case since the importing firms were non existent there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... context we find that the import is complete as soon as the goods are brought into the India, hence the contention of the Appellant cannot be accepted. For these reasons we do not find any infirmity in the adjudication order towards confiscation of goods. 7. As regard penalty on M/s Donald Macarthy and its Directors are concerned we find that the said appellant concern and its directors were solely responsible for sending goods to India in violation of customs laws. Hence the penalties were rightly imposed upon the appellant company and it's directors. We are therefore of the view that the penalties imposed upon the said three Appellants are to be upheld. 8. As regard other two appellants Shri Deendayal Didwania and Shri Navneet Kumar Didwania, we find that during searches no incriminating documents were found and no contumacious conduct or evidence has been brought on record which can show involvement of the said persons in importation of impugned goods. No instance has been brought to show that the Appellants attempted to clear the imported goods. Though some of the past consignments might have been cleared by these two appellants, however we find that no violation in im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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