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TMI Blog2000 (11) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Director of M/s. A B Fashions. J.S. Bajaj was an employee. On the strength of past exports of garments M/s. A B Fashions had obtained eligibility of importing goods free of Customs duty under the Duty Exemption Pass Book Scheme. Ten shipments were imported by them. Nine of them were handled by M/s. Rank Shipping Agency. One shipment was handled by Express Cargo Movers. The importers under the scheme were required to consume such duty free imports in the manufacture of export goods. However, where the export obligation had been met such goods could be disposed of. Readymade garments fell under Appendix 13E. These goods therefore could be transferred to an actual user in terms of this provision contained in paragraph 281 of the Import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was representing him was not present. Judging from the facts of the case the bench proceeded to decide the issues pertaining to Shashikant Shah and Rank Shipping also. The revenue was represented by Shri B.K. Choubey, JDR. 4. We have heard the submissions of both sides and have seen the documents in evidence. 5. The allegation against A B Fashions and their persons in charge is that they fraudulently connived with Shri Abhyankar of Ganesh Industries as also with Shashikant Shah and Rank Shipping Agency to import and to sell the goods imported free of duty. We have examined these allegations. The import of the goods was made in pursuance of an entitlement received by them on the strength of the exports made by them. The coverage of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conviction of the Collector that the importers and persons in charge thereof had connived with others for importing and selling the goods. We also take note that it was Shashikant Shah who had caused intervention of Vora also. The sales made to them have been accepted by the Commissioner as genuine. The evidence disclosed and discussed does not show that the situation wherein the goods was sold to Ganesh Industries was different in any manner. We therefore hold that the confirmation of duty and imposition of penalty on A B Fashions, J.S. Gill and J.S. Bajaj do not sustain. 6. We now come to Shashikant Shah. His statement is obviously recorded not in connection with the present proceedings but with some other proceedings. In this state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o submitted that the policy does not require any documentation. We also take note of the submissions made by Shri Nankani, regarding the coverage of the extended period under section 28(1) of the Customs Act. The language and the requirement for extended period to be invoked, there have to be mis-statements, suppression etc. with intent to evade duty on part of the importer. The sale of the goods is an activity subsequent to the importation and clearance of the goods. After the completion of the imports in this case, there is nothing to indicate that there was any patent misdeclaration. We have also held that the importers were not expected to know from the documents that one of the two buyers was fictitious. In view of our clear findings t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctory at Beed. This statement cannot be accepted in view of the two addresses shown in the letters. In the letters the payment particulars were also shown. The bank transactions certified by the bankers show that these payments were made from that bank account. It is also shown that account was opened by Abhyankar in that bank and was operated by him. Shri Phadnis pointed out that the letters were sent by some Patil and not by Abhyankar but in view of the observations made by us since these payments were made and the letters were written on the stationery of the proprietary unit, the proprietor cannot escape the responsibility. 10. In the various statements, Shri Abhyankar at some places has disclaimed his proprietorship. According to him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the proceedings. The bank account in his name shows very high volume of transactions over a considerable period. These are reasons to suspect that the operations by Abhyankar far exceeded the ambit of the present proceedings. 11. In the light of our analysis above we find that the orders imposing penalty on Abhyankar do sustain. These orders are upheld. 12. Shri Phadnis makes a valid claim and that is in order for the penalty to be imposed under Section 112(d). It had to be shown that the goods were liable to confiscation. It is his case that there is no such charge in the show cause notice. We have seen the show cause notice. In internal page 8 of the show cause notice a reference is made to annexure B of the show cause notice a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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