2015 (12) TMI 171 - AT - Customs

Waiver of pre deposit - Denial of the benefit of customs Notification No. 48/1999-cus dated 29.04.99 - diversion of imported Mulbery Raw Silk and Dupion Yarn under advance Licences - Imposition of penalty - Held that - Adjudicating authority has clearly brought out in his findings the diversion of imported goods with connivance of other co-noticees. We also find that Shri Mahesh Khemka already deposited 5, 50, 000/- and customs encashed the bank guarantee and appropriated for an amount of 29, 61, 884/- as clearly indicated at page-11 in para-10(p) of OIO. However the adjudicating authority has not appropriated the said amount in the adjudication order. - As regards imposition of penalty prima facie we find all the four of the applicants have made out a case for waiver of penalty - Stay granted.

Summary

Issues:
Stay applications for disposal arising from common issue and single adjudication order regarding alleged diversion of imported goods not used for export purpose, denial of customs duty benefit, imposition of penalties under Customs Act, 1962.

Analysis:
The judgment by Appellate Tribunal CESTAT CHENNAI involved multiple issues related to the stay applications arising from a common issue and single adjudication order. The main applicant, M/s. Silkfab Exports, imported 'Mulbery Raw Silk and Dupion Yarn' under advance licenses but faced allegations of diverting imported goods not used for export purposes. The adjudicating authority denied the benefit of customs Notification No. 48/1999-cus, confirmed a customs duty demand of Rs. 61,85,130 along with interest, and imposed penalties under Section 112 (a) and 112 (b) of the Customs Act, 1962 on the company and individuals involved.

The legal representative for M/s. Silkfab Exports argued that they had imported goods under advance licenses and fulfilled part of the export obligation. They requested consideration for the adjustment of exports already made to reduce the customs duty liability. The representative also highlighted the payment already made and the encashment of a bank guarantee by the customs department. They sought a waiver of penalties based on various grounds, including the expiration of the license validity at the time of the show-cause notice issuance.

Other applicants, Shri Kamal Kumar Lilha and Shri Mohammed Ameer, through their legal representative, pleaded for a waiver of the pre-deposit penalty amount. On the contrary, the respondent representative reiterated the findings of the adjudication order, emphasizing the diversion of goods and non-fulfillment of conditions prescribed under the advance license.

After considering the arguments from both sides and written submissions, the Tribunal found that the adjudicating authority had not appropriately considered various aspects, such as the diversion of goods and adjustment of export quantities. The Tribunal acknowledged the amount already paid by M/s. Silkfab Exports and granted a waiver of pre-deposit for the balance dues. Additionally, a prima facie case for waiver of penalties was found for all applicants, with full waiver granted to Shri Mahesh Khemka. Specific pre-deposit amounts were directed for each applicant within a stipulated time frame, with the balance of interest and penalty waived and recovery stayed pending appeal disposal.

In conclusion, the Tribunal's judgment addressed the issues of alleged diversion of imported goods, denial of customs duty benefits, and imposition of penalties, providing detailed analysis and directives for the involved parties based on the arguments presented during the proceedings.