2005 (6) TMI 148 - AT - Customs

EXIM - Export obligation - Fulfilment of - Confiscation - Liability of - Penalty - Imposition of

Summary

Issues Involved:
1. Jurisdiction of Additional Director General, DRI to issue show cause notice.
2. Prematurity of the show cause notice.
3. Utilisation of imported raw materials for export obligations.
4. Liability for confiscation under Section 111(o) of the Customs Act.
5. Imposition of penalties on various parties involved.

Issue-wise Detailed Analysis:

1. Jurisdiction of Additional Director General, DRI to issue show cause notice:
The Tribunal held that the Additional Director General of the Directorate of Revenue Intelligence (DRI) was competent to issue the show cause notice. This conclusion was based on the decision of the Larger Bench of the Tribunal in the case of Konia Trading Company. Consequently, the Tribunal set aside the findings of the Commissioner that the ADG, DRI had no jurisdiction to issue the show cause notice.

2. Prematurity of the show cause notice:
The Commissioner had initially dropped the proceedings on the grounds that the show cause notice was premature, as USL had applied for an extension of the period for fulfilment of export obligations to the DGFT. However, the Tribunal found this reasoning erroneous. Given that USL had ceased production during the relevant period and failed to produce any evidence of utilising the imported duty-free goods for manufacturing final products for export, the Tribunal concluded that the show cause notice was not premature.

3. Utilisation of imported raw materials for export obligations:
The Commissioner's findings indicated that USL had not utilised the imported raw materials for discharge of export obligations. The Tribunal agreed with these findings, noting that:
- There was no evidence of the materials being used for manufacturing export goods.
- USL had ceased production due to disconnection of electricity and lay off of workers.
- The imported materials were not traceable, and USL could not provide any proof of their utilisation for export.

4. Liability for confiscation under Section 111(o) of the Customs Act:
The Tribunal held that the non-availability of the goods for confiscation did not preclude their liability for confiscation under Section 111(o) of the Customs Act. The goods were liable to confiscation due to the contravention of the conditions of Notification No. 203/92-Cus. The Tribunal concluded that the imported goods had been used for purposes other than fulfilling export obligations.

5. Imposition of penalties on various parties involved:
The Tribunal imposed penalties on USL, its Managing Director, and Shri Jawahar Kanungo, while dropping penalties against other respondents due to insufficient evidence of their involvement. Specifically:
- A penalty of Rs. 50,00,000/- was imposed on USL.
- A penalty of Rs. 25,00,000/- was imposed on Shri A.S. Bhattar, Managing Director of USL, due to his complicity in the offence.
- A penalty of Rs. 25,00,000/- was imposed on Shri Jawahar Kanungo for his involvement in handling the imports and operating the bank account of USL.

Conclusion:
The Tribunal confirmed the duty demand of Rs. 4,04,40,590/- and held that the goods were liable to confiscation. Penalties were imposed on USL, its Managing Director, and Shri Jawahar Kanungo, while penalties against other respondents were dropped. The appeals of USL, Shri A.S. Bhattar, and Shri Jawahar P. Kanungo were allowed, and other appeals were dismissed.