2006 (11) TMI 67 - AT - Customs

Demand & Penalty Alleged that appellant has imported Aluminium Ingots under imprest licence under DEEC scheme and sold in the local market without fulfillment of export obligation Authority find the allegation right and imposed penalty on him

Issues Involved:
1. Denial of exemption under Notifications for imports.
2. Confirmation of demand of Customs duty.
3. Imposition of equal penalty under Section 114A.
4. Penalty under Section 112 of the Customs Act.
5. Appropriation of deposited amount towards duty demand.
6. Validity of the corrigendum issued for the Order-in-Original.
7. Applicability of Section 114A and 28AB of the Customs Act.
8. Transferability and utilization of imported goods under the DEEC Scheme.

Issue-wise Detailed Analysis:

1. Denial of Exemption under Notifications:
The appellants obtained two Special Imprest Licences under the DEEC Scheme for duty-free import of Aluminium Ingots. They violated the conditions of Customs Notification No. 260/92 and 128/94 by diverting and selling the imported materials in the local market instead of using them for manufacturing ASCR Moose Conductors. The Department of Revenue Intelligence (DRI) investigation confirmed the violation, leading to the denial of exemption under the said notifications.

2. Confirmation of Demand of Customs Duty:
The Adjudicating Authority confirmed the demand of Customs duty amounting to Rs. 6,07,67,478/- for imports through Mumbai Port, Rs. 50,83,301/- for Kandla Port, and Rs. 17,02,959/- for Nhava Sheva Port under the proviso to sub-section (1) of Section 28 of the Customs Act, 1962. The appellants' claim that they had completed export obligations prior to import was proven false by the Revenue.

3. Imposition of Equal Penalty under Section 114A:
Equal penalties were imposed under Section 114A of the Customs Act for the amounts of Customs duty demanded. The appellants argued that Section 114A could not be invoked as the violations occurred before the enactment of Section 114A. However, the explanation to Section 114A inserted in 2000 clarified that it applies to cases where the order determining the duty or interest relates to notices issued prior to the Finance Act, 2000. Therefore, the invocation of Section 114A was deemed correct.

4. Penalty under Section 112 of the Customs Act:
Penalties were imposed on individuals involved, including Rs. 50,00,000/- on Shri Rajesh Jain, Rs. 20,00,000/- on Shri Pankaj P. Shah, and Rs. 5,00,000/- on Shri Ashok P. Shah under Section 112 of the Customs Act. The appellants contended that the corrigendum issued to correct the name from Ramesh Jain to Rajesh Jain was invalid as the Adjudicating Authority becomes functus officio after issuing the order. However, the Tribunal considered it a typographical error and upheld the penalties.

5. Appropriation of Deposited Amount towards Duty Demand:
An amount of Rs. 3,00,00,000/- deposited by the appellant towards the duty demanded for clearances through Mumbai Port was appropriated. The Tribunal upheld this appropriation as part of the duty recovery process.

6. Validity of the Corrigendum Issued for the Order-in-Original:
The corrigendum issued to correct the name from Ramesh Jain to Rajesh Jain was challenged by the appellants. The Tribunal found that the role of Shri Rajesh Jain was clearly discussed in the Adjudication Order, and the correction was considered a typographical error. Therefore, the corrigendum was deemed valid.

7. Applicability of Section 114A and 28AB of the Customs Act:
The appellants argued that Sections 114A and 28AB, which came into effect from 28-9-1996, could not be applied retrospectively. However, the Tribunal held that the explanation to Section 114A inserted in 2000 allows its application to cases where the duty or interest determination relates to notices issued before the Finance Act, 2000. Thus, the penalties and interest demanded under these sections were upheld.

8. Transferability and Utilization of Imported Goods under the DEEC Scheme:
The Tribunal emphasized that the imported materials were not transferable under any circumstances and had to be used in the manufacture of final goods as per the DEEC Scheme and relevant notifications. The appellants' sale of imported goods in the local market was a blatant violation of these conditions, making the goods liable for confiscation under Section 111(o) of the Customs Act.

Conclusion:
The Tribunal upheld the Order-in-Original, confirming the denial of exemption, demand of Customs duty, and imposition of penalties under Sections 114A and 112 of the Customs Act. The appeal was rejected, and the appropriated amount towards duty demand was validated. The corrigendum issued to correct the name in the order was also upheld as a typographical error correction.

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