9911796707
TMI Blog1994 (2) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... anies and were heavily under-invoiced, they took up the investigation. During the course of investigation, statement of Shri Kishore Bhagat, operating on the Custom House Agents licence of M/s. Sunil Shipping Agency, was recorded and it was revealed that in respect of a consignment of 64 cartons of webbing strips imported in the name of Western Sales Corporation, the documents were received by him from one Shri Parasmal Shah and the documents pertained to the consignment were taken over by him. Shri Parasmal Shah in his statement indicated that he handed over the import documents to Shri Kishore Bhagat to file Bill of Entry and these documents were received by him from Shri Dhirubhai N. Sheth, the present appellant. He also revealed that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 64 cartons imported in the name of M/s. Western Sales Corporation may be released to him on payment of duty. During the personal hearing, it was pleaded that Dhirubhai N. Sheth is the owner of the goods which have been imported in the name of M/s. Western Sales Corpn. of which Shri Mahendra S. Dalal was the proprietor and Shri Dhirubhai Sheth had financed for the whole deal and Shri Mahendra Dalal happens to be a friend of Shri Dhirubhai Sheth and he had offered to import goods on his behalf on a commission of 5% and even the duty on the consignment has been paid to Shri Kishore Bhagat for remittance to the Department. Though the adjudication covers 3 consignments, the present appeal is only in respect of the consignment of 64 cartons o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He has also held that Shri Dhirubhai N. Sheth having caused the import fraudulently on the basis of the forged documents by using the blank signed declaration, has rendered the goods liable to confiscation under Section 111(d) of the Customs Act and hence he is liable to penalty under Section 112(a) of the Customs Act. Accordingly, he imposed a penalty of Rs. 1,00,000/- on the appellant. The present appeal is against the aforesaid order. 4. Though in the appeal memorandum, a prayer is made for releasing the goods to the appellant, during the hearing Dr. Kantawalla mainly argued against imposing penalty on the appellant. He has pleaded that the Department does not dispute that the import has been made in the name of the proprietary co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions or restriction but have been imported in accordance with the valid licences held in the name of M/s. Western Sales Corporation, who only are treated as the importer by the Addl. Collector. The Collector (Appeals) has not considered this aspect and merely rejected the appeal in a routine fashion. He would, therefore, urge that even if this Bench is not inclined to accept the appellant as the importer, penalty imposed on him cannot be justified. 5. Shri Mondal, the ld. SDR, on behalf of the Department, however, contended that the undisputed factual position is that the goods have been imported in the name of M/s. Western Sales Corporation by filling up some blank forms obtained from Shri Mahendra Dalal and the proprietary concern w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the firm and also agreed to sign various blank forms at the instance of the appellant by receiving the monetary consideration by getting certain percentage of profit and this arrangement appears to have been motivated by saving of certain taxes such as octroi, sales tax levied on the consignment, which could be averted, if they are directly imported in the name of Ahmedabad firm. This statement, though retracted, was subsequently confirmed by Shri Mahendra Dalal and even during the adjudication proceedings, both, the appellant as well as Shri Mahendra Dalal, have agreed that the import was made in the name of M/s. Western Sales Corporation, Ahmedabad, though the entire import was motivated and financed by the appellant. In the circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be justified, release of the goods to the appellant, in the absence of producing clear title to the goods, cannot be ordered, as pleaded in the appeal memorandum. The Department is at liberty, to dispose of the goods in accordance with the provisions of Section 48 of the Customs Act. 7. Though we may agree that in this case fraudulent design is discer-nible in projecting another person as the importer by the appellant, apparently this has been done with a view to avoid the payment of octroi and sales tax, which is evident from the first statement of Shri Mahendra Dalal extracted above. It is not the case of the Department that these goods could be imported only by actual users and M/s. Western Sales Corporation are actual users and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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