2004 (2) TMI 558 - AT - Customs

Summary

Issues Involved:
1. Confiscation of imported goods and imposition of penalties.
2. Allegations of double jeopardy.
3. Applicability of previous Tribunal decisions and Ministry of Commerce orders.
4. Quantum of penalties imposed.

Detailed Analysis:

1. Confiscation of Imported Goods and Imposition of Penalties:
The appeals involve M/s. Tiger Umbrella Industries and M/s. Textoplast Industries, both 100% Export Oriented Units (EOUs). M/s. Tiger Umbrella Industries imported 1,89,000 yards of nylon cloth duty-free, and M/s. Textoplast Industries imported 512 rolls of polyester film duty-free under Notification No. 13/81. Searches revealed shortages in both cases, leading to the issuance of show cause notices proposing confiscation and penalties under Sections 111(d), (j), and (o) of the Customs Act and penal action under Section 112. The Collector of Customs, Ahmedabad, confiscated the goods and imposed fines and penalties, which were challenged by the partners. The Tribunal upheld the confiscation and fines but set aside the penalties on the partners.

2. Allegations of Double Jeopardy:
The appellants argued that penalties under the two impugned orders amounted to double jeopardy, as penalties had already been imposed for the same offenses by the Collector of Customs, Ahmedabad, on 16-11-89. The Tribunal found no merit in this claim, as the show cause notices dated 7-4-88 and 7-8-89 pertained to different sets of goods and actions. The first notice dealt with goods seized on 14-10-87 and 19-10-87, while the subsequent notices related to shortages discovered in the bonded premises of the respective EOUs. Thus, the penalties were for different actions, not constituting double jeopardy.

3. Applicability of Previous Tribunal Decisions and Ministry of Commerce Orders:
The appellants relied on the Tribunal's decision in the case of Indian Rayon & Industries Ltd. to argue that no penalty could be imposed. However, the Tribunal distinguished this case, noting that Notification No. 110/95-Cus. under the EPCG scheme provided for non-fulfillment of export obligations, which was not the case under Notification No. 13/81. The appellants also cited an appellate order from the Ministry of Commerce, which set aside penalties under a different enactment. The Tribunal held that these precedents did not apply, as the present case involved clear violations of Notification No. 13/81 and the Customs Act.

4. Quantum of Penalties Imposed:
The Tribunal considered the totality of facts and circumstances, including the quantum of duty involved (approximately Rs. 40 lakhs), and decided to reduce the penalties. The penalties were revised as follows:
- M/s. Texto Plast Industries: Rs. 25 lakhs
- Shri R.P. Mehta: Rs. 5 lakhs
- Shri Hitesh R. Mehta: Rs. 5 lakhs
The penalty on Shri Jayesh R. Mehta was set aside due to insufficient evidence of his involvement in the offense.

Conclusion:
The appeals filed by M/s. Tiger Umbrella Industries and its two partners were rejected. The appeals filed by M/s. Texto Plast Industries, Shri R.P. Mehta, and Shri H.R. Mehta were partly allowed by reducing the penalties. The appeal filed by Shri Jayesh R. Mehta was allowed in toto.