TMI Blog2017 (11) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... as recorded that a feeble attempt was made by the Appellant in contending that the goods were received in the factory and utilized in the manufacture of exported goods but records were not traceable. The Appellant had not maintained any record to establish the fulfillment of the condition of Exim Policy under N/N. 43/2002-Cus. and to establish that the goods were utilized in the manufacture finished goods - there is no reason to interfere with the reasoning and conclusion recorded by the ld. Commissioner in confirming duty, interest and confiscation of the goods in absence of contrary evidence in this regard - appeal dismissed - decided against Revenue. - Custom Appeal No.118 of 2011 -SM - A/13447/2017 - Dated:- 15-11-2017 - Dr. D. M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Aggrieved by the said order, the Appellant filed Appeal before the ld. Commissioner (Appeals), who in turn, partly allowed their Appeal by reducing redemption fine to ₹ 4.0 lakhs and penalty to ₹ 1.50 lakhs. Hence, the present Appeal. 3. Ld. Advocate for the Appellant submits that the alleged diversion of the imported goods is not sustainable in the absence of cogent and corroborative evidence, accordingly, the demand of customs duty under Section 28 of the Customs Act is not sustainable. It is his contention that since the Appellant discharged the export obligation, therefore, in the absence of proof of clandestine diversion of imported goods, duty cannot be demanded in view of the judgment in the case of C.C.E., Ludhiana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey have fulfilled the export obligation, hence, the demand of duty on the imported goods is also unsustainable in law, be accepted, inasmuch as, the duty free imported goods cannot be transferred nor sold and has to be utilized in the manufacture of finished goods which alone can be sold in the local market. The condition of the Customs Notification and the Foreign Trade Policy read with Para 4.30 and 9.7 of Handbook of Procedure of Exim Policy 2002-2007 since violated, therefore, the Appellant are liable to discharge the duty with interest. 5. Heard both sides and perused the record. In the impugned order, the ld. Commissioner (Appeals) has discussed in detail the implication of Para 4.1.2 of Exim Policy 2002-2007 Advance Licence issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Notification No.43/2002-Cus. To establish that the goods were utilized in the manufacture finished goods. The conclusion of the ld. Commissioner (Appeals) as recoded is as follows: The Appellant failed to lead their evidence to Rule out their role in the offence committed and prove their case with clean hands even after they were given fair and sufficient opportunities during the original proceedings and also by the undersigned, to rebut the charges. Nothing was repelled by them to show that either they had brought the imported raw materials into their manufacturing unit at Baddi and in turn, used the same for the manufacture of resultant export products or that they maintained records prescribed for this purpose under the Exim P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as follows: 7.5. Citing the CESTAT judgment in C.C., Chennai Vs. Askhatt Forge [ 2008 (224) ELT 309] it was contended by the Appellant that penalty u/sec. 112 of the Customs Act, 1962 cannot be imposed for post import violation. However, after careful examination of the subject decision, I find that the Hon ble Tribunal in that case was dealing with a situation where both the proposal to demand duty from importer in respect of such goods under Section 28 read with Section 111 (o) of the Act was dropped by the Commissioner and his decision has been accepted by the Board. Based on these facts, it was held that where the action proposed under Section 111 of the Custom Act stands dropped, there is no question of invoking Section 112 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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