9911796707
TMI Blog1990 (12) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... ine of Rs. 4 lakhs in lieu of confiscation under Section 125 of the Customs Act, 1962 (the Act, for short), and imposing a penalty of Rs. 50,000/- under Section 112 of the Act on the appellant Shri Santosh Kumar Gupta, the Director of M/s. Niagara Electronic (P) Ltd. 2. M/s. Minex Agencies, Calcutta, sold the additional licence in question for the import of Fax Machines Model UF 400 to M/s. Niagara Electronics (P) Ltd. and M/s. Niagara Electronics (P) Ltd. being the purchaser of the licence, imported the goods in question. Proceedings were instituted against the appellants on the basis of allegations, inter alia, that the licence in question was not a transferable one, the goods were not importable under the licensing period by any import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the import licence, he would have been permitted to import any model including the goods of the model in the present case. The learned Counsel further urged that under similar licences, the Customs department has been permitting import of similar goods and, therefore, the mere fact that the original licence contained a particular model incorporated therein, would hardly make any difference so far as the validity of the licence is concerned. The learned Counsel, therefore, submitted that, if at all, the breach in the above circumstances is purely venial in nature and the contravention technical in character and, therefore, the huge fine amount and penalty are not called for in the facts and circumstances of the case. The learned Counsel pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for substantial reduction in the quantum of fine and penalty. 4. Shri M.N. Biswas, learned Senior Departmental Representative submitted that originally the licence was issued on 5-9-1986 in the name of M/s. Minex Agencies, Calcutta, who would not have any right to transfer it as per law as it stood at the relevant time and the appellant, admittedly not being an actual user, got it transferred on 18th March, 1988. Even though a particular model of the Fax Machine is specified in the licence, the appellant by his order dated 15-2-1988 placed orders for a different model. The learned SDR, therefore, urged that the appellants were not actuated by bona fides even at the time when they purchased licence and more so when they placed the orders w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1(iii) of the Import-Export Policy, 1985-88 shall also be freely transferable and without Actual User conditions. The learned adjudicating authority, in the context of this Public Notice has observed as follows :- This Public Notice of 7th Sept., 1988 has totally altered the position and therefore the allegation regarding the validity of the licence will have to be examined in terms of the Public Notice of 7th September, 1988, the additional licences produced by the Importer are clearly valid to cover the goods imported. However, it will have to be examined whether apart from the fact of the Export Houses being permitted to import non-OGL capital goods, the goods actually imported conform to the specification mentioned in the licence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o warrant the imposition of about 100 per cent fine on the value of the goods in question and a huge penalty. In this context, we also bear in mind that under, similar licences without containing the brand of the Fax Machine in question, the department has been permitting clearances, as pleaded by the learned Counsel for the appellants during the course of the hearing. We also take note that the goods in question are still lying in the warehouse and may entail financial liability to the appellants to a considerable extent towards demurrage charges. 7. The rulings relied upon by the learned Counsel for the appellants are not applicable to the facts and circumstances of the case. The ratio in the Extrusion Processes Pvt. Ltd. case of the Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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