TMI Blog2018 (3) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... we find as per his responsibility towards the entire episode is limited. Accordingly he deserves some leniency - the penalty on Shri Kamal Agarwal reduced from ₹ 2,00,000/- to ₹ 1,00,000/-. As regards the appeal of Shri Harbhajan Singh Sandhu, we observe that he is the person who imported and cleared the goods by using the advance licence and the goods were diverted to domestic market. Therefore, he was directly involved in the fraud of advance licence and was the next gainer of the benefit derived from the said fraud. Therefore, the penalty imposed of ₹ 2,00,000/- on Shri Harbhajan Singh Sandhu is just and proper. Penalty u/s 114A of CA - Held that: - Once customs duty was confirmed under the proviso to Section 28, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh Sandhu, Shri Vinod Garg and Jitendra Shasikant Shah and helped Shri Harbhajan Singh Sandhu and Shri Vinod Garg in the diversion of one consignment of 18,900 kgs. of imported polyester yarn valued at ₹ 12,42,820/- involving duty which was forgone amounting to ₹ 8,79,621/- by fraudulently utilizing the advance licences of Amba Expo Fab. Shri Kamal Agarwal also helped Shri Harbhajan Singh Sandhu and Shri Vinod Garg in diverting the said consignment into the domestic market of Ludhiana. Shri Kamal Agarwal was also involved himself in helping Shri Harbhajan Singh Sandhu and Shri Vinod Garg of M/s. Royal Industries in the diversion of one consignment into the domestic market in contravention to the provisions of Notification No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trupti Chavan, learned Assistant Commissioner (AR) and Shri Ahibaran, learned Additional Commissioner (AR) appearing on behalf of the Revenue, submit that both the appellants were admittedly involved in fraudulent benefit of advance licence as the goods were diverted in the domestic market and both the appellants were well within the knowledge of the entire modus operandi. Therefore the penalties imposed on the appellants are legal and proper which do not require any interference. In the Revenue s appeal it is sought to enhance the penalty from ₹ 75,00,000/- to equal to the duty of ₹ 3,47,48,553/- under Section 114A. Learned ARs submit that under Section 114A, there is no option to impose a reduced penalty. Therefore, the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed. 6. As regards the Revenue s appeal, we find that there is no dispute that the total duty confirmed is ₹ 3,47,48,553/- invoking the proviso to Section 28(1) of the Customs Act, 1962. However, the learned Commissioner imposed penalty of ₹ 75 lakhs under Section 114A of the Customs Act. Once customs duty was confirmed under the proviso to Section 28, the ingredients to invoke Section 114A in relation to the entire duty stands invoked. Therefore, the Commissioner has gravely erred in not imposing the penalty of ₹ 3,47,48,553/- under Section 114A. This issue has been settled in the case of UOI vs. Dharmendra Textile Processors reported in 2008 (231) ELT 3 (SC) that penalty under Section 114A should be mandatorily ..... X X X X Extracts X X X X X X X X Extracts X X X X
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