9911796707
TMI Blog2002 (12) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... raw silk garments; that on the basis of the exports made by them, they were granted Advance Licence No. 2048595, dated 7-10-92 under Notification No. 204/92-Cus. under DEEC Scheme permitting them to import 4480 kilos of 100% Mulberry Raw Silk (MRS) duty free within the CIF value of Rs. 35 lakhs; that since they had already exported garments which contained 4518.7 kilos of raw silk, the import entitlement was enhanced to 6326.18 kilos of MRS; that as the export obligation had already been fulfilled, the licences were transferred by them to certain firms who imported raw silk and obtained the duty exemption benefit. 2.2 He, further, mentioned that a show cause notice dated 22-6-98 was issued to them and the importers alleging that the q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act as the goods cannot be considered to be prohibited one since there existed a licence to import the goods; that Section 111(o) is applicable only when the import is made subject to certain conditions; that since the import has not been made subject to any condition, Section 111(o) is not applicable to the facts of the present matter; that the benefit of exemption from duty was given on the basis of the export obligation already performed and on the basis of the advance licence and the DEEC issued by the DGFT and accordingly the exemption from duty was not subject to any further condition which was required to be fulfilled; that in any case, the exemption from duty was granted in respect of the goods imported by parties other than the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellants have not made any submissions on this aspect at all; that the Shipping bills were manipulated in order to get a higher duty free benefit under the Advance licence granted to the Appellants; that they did not discharge the export obligation in full and the goods could not have been imported but for the endorsement made by the licensing authority on the face of the licence; that there is a direct nexus in the acts of commission of the Appellants and availment of the benefit of exemption notification; that their acts of commission/omission has rendered the goods liable for confiscation and accordingly penalty under Section 111(o) of the Customs Act is imposable. The learned SDR reiterated the findings of the Adjudicating Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uantity Based Duty Exemption Entitlement Certificate in respect of the value, quantity, description, quality and technical characteristics. Section 111(o) of the Customs Act provides that the goods brought from a place outside India shall be liable to confiscation if the goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under the Customs Act or any other law for the time being in force, in respect of which the condition is not observed. It is not in dispute that the goods were imported in pursuance of the Advance licence granted to the Appellants and on import, exemption from payment of duty under Notification No. 204/92-Cus. has been availed of. As the exemption from duty has been avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as such penalty is imposable on the Appellants. The ratio of the decision in HMM case is not applicable as the Penalty under Section 112 of the Customs Act is related to the confiscability of the goods under Section 111 of the Customs Act. In HMM case the duty of excise was demanded under Section 11A of the Central Excise Act and as duty was held to be time barred, no penalty was held to be imposable. Accordingly we hold that the penalty is imposable on all the three Appellants under Section 112(a) of the Customs Act. The role of the Appellants No. 2 and 3 has been discussed by the Commissioner in the impugned order as under :- "That leaves us with Ahtasham Alam one of the major partners of the firm. There is enough evidence against him t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
