2008 (6) TMI 65 - AT - Customs

DEEC Scheme - Violation of actual user condition contained in condition Notification 30/97-Cus, by diverting the goods in local market in unauthorized manner held that since revenue had not contended that importer had contravened the provisions of Section 111(o), plea that the goods are liable to confiscation, is rejected Revenue plea that the Commissioner should not have directed suo motu refund of money deposited by co-noticees during investigation, is also rejected penalty not imposable

Summary

Issues Involved:
1. Dropping of penal proceedings against co-noticees.
2. Direction for refund of amounts paid by co-noticees.
3. Legality of the Commissioner's order.

Detailed Analysis:

Issue 1: Dropping of Penal Proceedings Against Co-Noticees

The Revenue challenged the Commissioner's decision to drop penal proceedings against the co-noticees, arguing that there was a well-knit arrangement to evade customs duty. The Commissioner was criticized for heavily relying on retraction letters and ignoring corroborative evidence provided by the department. The Revenue highlighted that statements from various individuals, including transporters and warehouse keepers, indicated the involvement of the co-noticees in the evasion scheme. The Commissioner was also accused of ignoring independent witness statements and corroborated confessions that implicated the co-noticees.

Issue 2: Direction for Refund of Amounts Paid by Co-Noticees

The Revenue contended that the Commissioner erred in directing the refund of amounts paid by co-noticees during the investigation. It was argued that such a direction was beyond the jurisdiction of the Commissioner, as no refund application had been filed under Section 27 of the Customs Act, 1962. The Revenue maintained that the amounts deposited should have been adjusted towards the duty and penalties imposed on the importer, M/s. Kunal Overseas Ltd.

Issue 3: Legality of the Commissioner's Order

The Tribunal noted that the Revenue did not challenge the Commissioner's order on the grounds of contravention of Section 111(o) of the Customs Act by the importer. As a result, the appeal against the importer was dismissed. The Tribunal also found no merit in the Revenue's prayer for holding the co-noticees liable to penalty under Section 112(a) and (b) of the Customs Act, 1962, as there was no order of confiscation of goods or a finding of liability of any goods to confiscation. The Tribunal referenced the case of Castrol (India) Ltd. v. CCE, Vapi, which held that penalties under Section 112(b) are not warranted in the absence of an order of confiscation.

Conclusion:

The Tribunal upheld the Commissioner's order, rejecting the appeals of the Revenue. The decision to drop penal proceedings against the co-noticees and the direction for refund of amounts paid during the investigation were found to be justified. The Tribunal emphasized that penalties under Section 112(a) and (b) are not applicable without an order of confiscation, and the amounts paid by co-noticees on their own account were rightly directed to be refunded.