TMI Blog2022 (6) TMI 1225X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act - appropriation of amounts deposited by or on behalf of company during investigation towards duty and interest liability - HELD THAT:- The appellants said role in relation to import of goods is not borne out of facts on record. Significantly, the case of the department of mis-declaration of Chinese origin goods for evading anti-dumping duty is wholly directed against Nalin Mehta. Jayesh Mehta has stated in his statement that he attended the work of customs clearance as representative of CHA and acted upon the direction of Nalin Mehta. There is no evidence to show that at the time of imports he was aware that goods were allegedly being mis-declared by Nalin Mehta to customs. Harshad Vadodaria has specifically stated in his statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be faulted. Appropriation of amounts deposited by or on behalf of company, Shobha Plastics, during investigation towards duty and interest liability - HELD THAT:- As regards, Shobha Plastics, it is seen that vide Order dated 05.11.2008 the Commissioner of Customs, Ahmedabad fastened duty liability jointly and severally upon Shobha Plastics and Nalin Mehta. However, the said Order dated 05.11.2008 was set aside by Tribunal vide its Order dated 15.04.2009 with a direction to the Commissioner to fix duty liabilities on each and every individual separately. Accordingly, Commissioner vide his common Order dated 19.01.2011 held Nalin Mehta to be the importer of the goods and fixed duty liability upon him along with interest and penaltie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... country of origin as Malaysia, instead of China. Consequently, three Show Cause Notices viz. SCN No. DRI/AZU/INV/-13/2006 dated 29.11.2007, SCN No. DRI/AZU/INV-14/2006 dated 13.08.2007 and SCN No. DRI/AZU/IV-15/2006 dated 31.1.2008 were issued inter-alia raising demand of anti-dumping duty jointly and severally on Nalin Mehta and Shobha Plastics Private Limited, which culminated into Order dated 05.11.2008 of the Commissioner of Customs, Ahmedabad. However, the said Order dated 5.11.2008 was set aside by Tribunal vide its Order dated 15.04.2009 with a direction to the Commissioner to fix responsibilities of each and every individual separately. Thereafter Commissioner vide his common Order dated 19.01.2011 held Nalin Mehta to be the real im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hul Gajera, Learned Counsel appearing for the appellants pointed out that Commissioner in second round of litigation vide Order dated 19.01.2011 has held Nalin Mehta as the importer of the goods and accordingly he was held liable to pay duty, department has not preferred appeal against the said order and hence the said position has attained finality. He further submitted that it was vide Order dated 27.01.2014 of this Tribunal, the appeal of Nalin Mehta was allowed on the ground that he has not filed bills of entry and hence cannot be held as importer of goods under section 2 (26) of the Act. He submitted that if that be so then there is no duty liability on the imported goods held on any of the persons named in the show cause notice. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. Commissioner 2010 (259) ELT 228 (Del) (c) CC vs. Prisma Polyfabs Pvt Ltd 2003 (162) ELT 381 (Tri. Del.) 5. Shri Dinesh M. Prithiani, learned Assistant Commissioner (AR) appearing for the Revenue submitted that this Hon ble Tribunal has dropped the demand of duty as against Shri Nalin@ Bakul Zaverilal Mehta holding that he is not the importer in terms of section 2 (26) of the Customs Act,, 1962; that although department s appeal against the said order is pending, if Shri Nalin Mehta is not the importer in the case then Shobha Plastics who has filed seven Bills of Entry should be considered as importer in the case. He submitted that role of Harshad Vadodaria, Director of Shobha Plastics, Jayesh Mehta in relation to incorrect de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... borative evidence to establish that appellants herein had knowledge that goods imported were of Chinese Origin, in that view it cannot be said that appellants herein have committed any act or omission, which rendered the goods liable to confiscation, accordingly penalty under section 112 (a) cannot be sustained. Further, impugned order imposed penalty under section 112 (a) whereas show cause notice invoked section 112 (b) of the Act, appellants herein were not put to notice under section 112 (a), the same cannot sustain in view of judgement in the case of Amrit Foods V. Commissioner - 2005 (190) ELT 433 (SC). 7. As regards, Shobha Plastics, it is seen that vide Order dated 05.11.2008 the Commissioner of Customs, Ahmedabad fastened duty l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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