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2011 (4) TMI 316 - AT - CustomsDemand - Confiscation - Evasion of duty - Notification No. 203/92-Cus - It is not in dispute that 288 MTs of HDPE were imported and cleared duty-free under two Advance Licences which stood in the name of M/s Nandlal Shivaldas (proprietor Shri Nandlal Kishandas Khemani) - It is not in dispute that the Bills of Entry were filed in the name of M/s Nandlal Shivaldas and that, in one of his statements, Shri Nandlal Kishandas Khemani admitted duty liability and also paid an amount of Rs. 6 lakhs during the course of investigations - The conduct of M/s Nandlal Shivaldas in the present case is, by and large, in support of this legal position and, therefore, it is not open to this appellant to deny their duty liability - Decided against the assessee
Issues Involved:
1. Demand of Customs duty under Section 28 of the Customs Act, 1962. 2. Liability of goods to confiscation under Section 111(d) and (o) of the Customs Act. 3. Imposition of penalties under Section 112 and Section 114A of the Customs Act. 4. Appropriation of deposited amounts towards duty demand. 5. Compliance with conditions of Notification No. 203/92-Cus. Detailed Analysis: 1. Demand of Customs Duty: The Commissioner demanded Customs duty of Rs. 58,38,234/- from M/s Nandlal Shivaldas (Prop: Shri Nandlal Kishandas Khemani) for 288 MTs of High Density Polyethylene (HDPE) imported duty-free under two Advance Licences and Notification No. 203/92-Cus. The show-cause notice issued on 31.3.1998 invoked the extended period of limitation under Section 28 of the Customs Act, 1962, due to non-compliance with the mandatory conditions of the notification. The goods were alleged to have been diverted in the local market, and the Advance Licences did not bear the endorsement of transferability by the Licensing Authority. 2. Liability of Goods to Confiscation: The Commissioner held the imported goods liable to confiscation under Section 111(d) and (o) of the Customs Act. The show-cause notice alleged that the imported goods were diverted in the local market after clearance, and the Advance Licences did not bear the endorsement of transferability by the Licensing Authority, violating the conditions of Notification No. 203/92-Cus. 3. Imposition of Penalties: Penalties were imposed under Sections 112 and 114A of the Customs Act. Shri Nandlal Kishandas Khemani was penalized equal to the duty amount under Section 114A, while penalties were also imposed on Shri Mahesh D Ganatra, Shri Naresh A Shah, and Shri Ashwin C Shah under Section 112. The Tribunal found that Shri Nandlal Kishandas Khemani was aware of the non-transferability of the licences and transferred them for a premium, thereby rendering the goods liable to confiscation. The penalty under Section 114A was not sustainable as it was not in existence at the time of imports, but a penalty under Section 112(a) was justified. 4. Appropriation of Deposited Amounts: A total amount of Rs. 8 lakhs deposited by Shri Nandlal Kishandas Khemani and two others was appropriated towards the duty demand. Shri Nandlal Kishandas Khemani admitted duty liability and paid Rs. 6 lakhs during the investigation, which was considered in determining the duty liability. 5. Compliance with Notification Conditions: The show-cause notice invoked conditions (vi) and (vii) of Notification No. 203/92-Cus, which required the importer to use the exempted materials solely for discharge of export obligation and to establish transferability of the licence by the Licensing Authority. The Tribunal found that these conditions were not met, as the imported goods were diverted in the local market and the licences did not bear the necessary endorsement. Judgment Summary: The Tribunal affirmed the demand of duty against M/s Nandlal Shivaldas, invoking the extended period of limitation due to evident evasion of customs duty. The penalty on Shri Nandlal Kishandas Khemani was modified from Section 114A to Section 112(a) and reduced to Rs. 15 lakhs. The penalty on Shri Naresh A Shah of Rs. 5 lakhs under Section 112 was affirmed, consistent with a previous similar case upheld by the High Court. The appeal of Shri Nandlal Kishandas Khemani was disposed of with modifications, while the appeal of Shri Naresh A Shah was dismissed.
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