TMI Blog2023 (7) TMI 1070X X X X Extracts X X X X X X X X Extracts X X X X ..... f exports and balance of domestic use, which means out of total imported gold, 80% can be cleared for home consumption, which were assessed and allowed on payment of duty and 20% of the gold was cleared to the importer in terms of Notification No.56/2000Customs dated 05 .05.2000 wherein all the demand was exempted with the condition that the importer shall, after processing the said gold, reexport the same - The Appellant No.(1) (2) filed Ex-bond Bills of Entry and for home consumption, after clearing the gold, the job of the Appellant No.(1) (2) came to an end. They have nothing to do with the gold in question. As they have cleared the gold first to the importer on bonded warehouse and thereafter, cleared for home consumption on payment of duty. These are not in dispute. In these set of facts, there is no role of the Appellant No.(1) (2) to allege that they have made gold liable for confiscation for non-fulfillment of export obligation by the importer - Thus, the penalties on the Appellant Nos.(1) (2) cannot be imposed under Section 112 of the Customs Act, 1962. With regard to Appellant No.(3), the duty of the Appellant No.(3) is to safe custody of the imported gold, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t ORDER All the appeals are arising out of a common order. Therefore, the same are being disposed off by a common order. 2. By way of impugned order, penalty of Rs.40,00,000/- was imposed on the Appellant No.(1), penalty of Rs.25,00,000/- was imposed on the Appellant No.(2) and penalty of Rs.1,00,00,000/- was imposed on the Appellant No.(3). 3. The facts of the case are that one Shree Ganesh Jewellery House (I) L imited (Importer) filed five in-bond Bills of Entry for import of 500 kgs of gold. It was alleged that the importer has filed five in-bond Bills of Entry and cleared 400 kgs of gold on payment of appropriate duty in terms of RBI circulars dated 14.08.2013, which provides a scheme of minimum of 20% of the imported gold was required to be exclusively made available for exports. 3.1 The remaining 100 kgs of gold was allowed to be cleared without payment of duty under Notification No.56/2000-Cus dated 05.05.2000. 500 kgs of imported gold was warehoused on Importer s private bonded warehouse, in which, the Appellant No.(3) has provided a Bin . The Appellant No.(3) provided service of safe delivery of the gold to the importer and store in the Bin provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircular has also been violated. 3.7 The matter was adjudicated and penalties on the Appellants were imposed. 3.8 Against the said order, the Appellants are before us. 4. Dr. Samir Chakraborty, Ld. Sr. Advocate appeared on behalf of the Appellant No.(1) (2) and submitted that after clearance of the imported goods by handing over to the importer, the role of the Appellants comes to an end. He further submitted that the show-cause notice does not disclose the details of any contravention or infraction of the provisions of the Act by the Appellants and being vague thereunder including the impugned order, untenable and unsustainable. To support, he relied on the following case laws : (i) Commissioner of Central Excise Vs. Brindavan Beverages (P) Ltd. : 2007 (213) ELT 487 (SC) ; (ii) Delta International Limited Vs. Commissioner of Customs : 2012 (281) ELT 400 (Cal.) ; (iii) Shilpi Enterprises Vs. Commissioner of Central Excise : 2017 (349) ELT 308 (T). 4.1 He further submitted that the allegation against the Appellants have been invented to arbitrarily, unreasonably and in a perverse manner, penalty has been imposed on the appellant. There is no such allegati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearance was undertaken by the CHA. The Appellant No.(3) has a limited role of safe custody of gold into Bin provided in the private bonded warehouse of the importer. The gold was admittedly kept in the Bin and was delivered to the importer on its filing ex-bond Bills of Entry and payment of duty of Customs. The Department (Respondent herein) themselves allowed clearance of 400 kgs of gold for home consumption for payment of duty and it was known to the Department of RBI and CBIC Circular on this issue. Therefore, the appellant was never involved in any manner in clearance of 400 kgs of gold allowed to be cleared on payment of duty by the Department. In any event, the gold was deposited in the private warehouse of the importer and the importer was responsible for clearance of the gold and compliance of Customs Act. 5.1 He further submitted that it was almost after five years after permitting clearance of 400 kgs of gold for home consumption on payment of duty and the Department issued show-cause notice alleging that the importer was not entitled to benefit of 80:20 Scheme as the importer was Premier Trading House and it could not have imported for itself and claim be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... berate and conscious attempt to hide facts about initial storage of gold and later clandestine/illegal removal of 100 kgs of gold from its vault. Admittedly, five in-bond Bills of Entry were filed for initial storage of gold in the private bonded warehouse of the importer and was later allowed for home consumption against Bond and Bank Guarantee. There was neither clandestine nor illicit removal of 100 kgs of gold. He submitted that the Customs Broker, to whom the delivery of the gold was given by the appellant, was engaged by the importer and the charge of Customs Brokers was paid by the appellant, which were reimbursed by the importer. It is his submission that the appellant did not deal with the gold in any manner, which rendered the gold liable for confiscation. In fact, no alleged act or omission on the part of the appellant could have rendered the 100 kgs gold liable for confiscation as it was allowed to be cleared for home consumption by the Department by extending the exemption. 5.6 He further submitted that the adjudication of the show-cause notice is contrary to Section 28(9) of the Act. Admittedly, the impugned order was passed beyond six months. Section 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on payment of duty. These are not in dispute. In these set of facts, there is no role of the Appellant No.(1) (2) to allege that they have made gold liable for confiscation for non-fulfillment of export obligation by the importer. 10. Therefore, penalties on the Appellant Nos.(1) (2) cannot be imposed under Section 112 of the Customs Act, 1962. 11. With regard to Appellant No.(3), the duty of the Appellant No.(3) is to safe custody of the imported gold, which is a private bonded warehouse of the importer and while assessing the Bills of Entry for ex-bond warehouse, the goods were allowed to be stored in the Bin provided by the appellant for safe custody of the gold. Thereafter, the Appellant No.(3) has handed over 400 kgs of gold on duty paying documents by Appellant No.(1) i.e. not in dispute. 12. With regard to 100 kgs of gold, clarification has been given on 27.09.2013, which provides clearance of gold to exporters on internal documents of nominated agencies, which is as under : Clearance of gold to exporters on internal documents of nominated agencies : Representations have been received from stakeholders regarding difficulties to nominated agencies ..... X X X X Extracts X X X X X X X X Extracts X X X X
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