1999 (8) TMI 896 - AT - Customs

Summary

Issues Involved:
1. Confiscation of imported fabrics.
2. Imposition of penalties under Section 112.
3. Alleged fabrication of export documents.
4. Compliance with DEEC pass book obligations.
5. Validity of agreements with third parties for export obligations.
6. Liability of directors and employees.
7. Demand for interest on unpaid duties.

Issue-wise Detailed Analysis:

1. Confiscation of Imported Fabrics:
The Collector of Customs, Mumbai ordered the confiscation of fabrics imported by Banswara Fabrics Limited under the DEEC pass book scheme, with an option to redeem them on payment of duty. The confiscation was based on the failure to fulfill export obligations and the alleged sale of exempted materials without permission, violating conditions (c) and (d) of Notification 117/78, making the goods liable for confiscation under clause (o) of Section 111.

2. Imposition of Penalties under Section 112:
Penalties were imposed on Banswara Fabrics Limited and its directors and employees for contravening the provisions of the DEEC scheme. The Collector found that the exempted materials were not used for manufacturing the resultant product and were sold without permission, which was a violation of the scheme's conditions. Penalties were imposed on the company and its officials for their alleged collusion in these activities.

3. Alleged Fabrication of Export Documents:
The investigation revealed that the shipping bills showing the export of goods were fabricated, and no actual export took place. The entries in the DEEC pass book were not attested by the Customs Officer, and the signatures were forged. The Collector confirmed these findings and imposed penalties based on the fabricated documents.

4. Compliance with DEEC Pass Book Obligations:
The appellant argued that there was no contravention of the notification's conditions until the goods were sold in the market. The notification allowed for the export obligation to be fulfilled using materials other than those imported under the scheme. The agreement with Sari Niketan for fulfilling the export obligation was claimed to be legitimate, but the Collector found it to be a cover-up for the company's activities.

5. Validity of Agreements with Third Parties for Export Obligations:
The agreement between Banswara and Sari Niketan was scrutinized. The Collector found that the agreement was manipulated, and Sari Niketan knowingly agreed to help Banswara in contravention of the law. However, the Tribunal noted that the agreement between Banswara and Sari Niketan was genuine and did not involve the transfer of imported materials before fulfilling the export obligation. The yarn remained with Banswara until it was sold.

6. Liability of Directors and Employees:
The Tribunal found no evidence that the directors and employees of Banswara were involved in or aware of the forgery and manipulation of documents. Investigations did not reveal their participation in the fraud. Consequently, penalties imposed on the directors and employees were set aside, as there was no evidence to support their involvement.

7. Demand for Interest on Unpaid Duties:
The Tribunal held that the Commissioner's order demanding interest on the goods was not supported by law. The Customs Act did not provide for the recovery of interest at the relevant time, and the licensing provisions did not empower the Commissioner to demand interest. Therefore, the demand for interest was not substantiated.

Conclusion:
The Tribunal partially allowed the appeal of Banswara Fabrics Limited, reducing the penalty imposed on the company to Rs. 5 lakhs and setting aside the penalties on its directors and employees. The demand for interest was also annulled. The Tribunal emphasized that the only contravention was the sale of imported yarn, which was a technical violation aimed at realizing the duty obligation.