TMI Blog2009 (7) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... nes were found in the premises of Fayyaz Binding Works of Mohammed Illyas Qureshi. Remaining 5 machines out of that lot of 16 printing machines could not be located – held that these machines are liable to confiscation under Section 111 and appellant is liable to be penalised. - 42 OF 2009 - - - Dated:- 1-7-2009 - F.I. REBELLO J.H. BHATIA, JJ. Mr. Prakash Shah i/by PDS Legal, adv., for the Appellant. Mr. R. V. Desai, Sr. Counsel with Mr. R. B. Pardeshi, advs., for the Respondents. [Judgment: per J. H. BHATIA, J.] - Heard the learned counsel for the Parties. Perused the orders passed by the Adjudicating Officer as well as by the Appellate Tribunal. 2. On perusal of the record, it appears that the present appellant, Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not have sufficient money to import such goods, the present appellant and Baban Sharma offered to arrange finances for importing machines. Shailesh Mehta refused the offer. Thereafter, he was offered a commission of Rs.1 lac if he would allow the import of machinery in the name of his proprietorship concern M/s. Classic Pack. Shailesh Mehta accepted this offer. Later on, the present appellant handed over 4 cheques worth Rs.9.5 lac to Shailesh Mehta in the month of January, 1997. Those cheques were issued by M/s. Ambika Stones in favour of the Classic Pack. Statement of one Girish Mehta revealed that he had issued 4 cheques in favour of M/s. Classic Pack as per the instructions from the present appellant and the cheques were handed ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting machines. 3. Adjudicating Authority minutely considered the whole material before coming to conclusion that the present appellant, Baban Sharma and others had violated provisions of Foreign Trade (Development Regulation) Act, 1992 read with Export and Import Policy for the period 1996-97 and thus, they had violated provisions of Section 111(0) of the Customs Act, 1962. In the result, they were held guilty under Section 112(a) and Section 112(b) of the Customs Act, 1962. The present appellant and Baban Sharma, taking into consideration their main role, were awarded penalty of Rs.10 lac each. The Appellate Tribunal also minutely considered the whole material and dismissed the appeal filed by the present appellant, Baban Sharma and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... careful reading of this provision, it becomes clear that the imported goods shall be liable for confiscation if , (a) the goods are exempted from duty, subject to any condition, or (b) goods are exempted, from any prohibition in respect of the import thereof under the Customs Act or any other law subject to any condition and (c) and that condition has not been observed, unless the non-observance of the condition was sanctioned by the proper officer. 5. It is nobody's case that goods were exempted from the payment of duty. Even though Mr. Shah contended that there was no prohibition on the import of goods under any law and that second-hand capital goods were freely importable without any condition, we are not satisfied with this contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mported unless they were to be imported for actual user by the importer. That itself was a prohibition against import. However, the import would be exempted from the prohibition subject to "Actual User Condition". If that condition is violated, provisions of S.111(o) of the Customs Act would be attracted. As per paragraph 41 of Chapter V of the Hand-Book of procedure for Export and Import Policy for the period 1996-97, second-hand capital goods imported without an import licence under the actual user condition could not be transferred, sold or otherwise disposed off within a period of 5 years from the date of import except with prior permission of Director General of Foreign Trade. There is no dispute that in this case, 16 second-hand prin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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