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TMI Blog2002 (10) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Act with option to redeem the goods on payment of fine of Rs. 20 crores; (b) confirmed a differential duty demand of Rs. 96,26,91,711/- under the proviso to Sec. 28(1) of the Customs Act; and (c) imposed the following penalties, inter alia, on the applicants under Sec. 112 of the Act : /s. Essar Oil Ltd. : Rs. 10 crores; Shri S.R. Agarwal : Rs. One crore; Shri P.R. Ashok : Rs. 25 lakhs, and Shri Nitin Bhatt : Rs. 10 lakhs. 2. The brief facts leading to the filing of the applications are that M/s. Essar Oil Ltd. (hereinafter referred to as EOL) imported plant and machinery for setting up a petroleum refinery project and stored the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of little over Rs. 60 crores was payable on goods lying at the bonded warehouse, that duty of Rs. 37 lakhs approximately was payable against goods lying at the Jetty and Rs. 2,72,50,000/- was payable on goods lying at the Kandla Port and requesting that a demand draft for Rs. 60,03,10,000/- be sent for release of the goods from the bonded warehouse. On 24-2-99, EOL wrote to ICICI requesting for immediate release of the loan so that the warehoused goods could be released before the budget and also agreed to give an undertaking furnishing securities. On the same date, i.e. 24-2-99, EOL at Jamnagar received a copy of Vadodara Commissionerate Trade Notice No. 73/85, dated 30-4-85 containing the special procedure to be followed for payment of du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very of differential duty, on the ground that duty was payable at the rate prevailing on 17-3-99, which is the date of payment of duty, by applying provisions of Sec. 15(1)(c) of the Customs Act and proposing confiscation of goods and proposing penal action. The notice alleged that EOL has falsely represented before the Customs authorities on 25-2-99 that it was in position of sufficient funds in its bank, to cover the cheque amounts, that EOL had managed to have the cheques presented by it accepted by the Customs officers, that the cancellation of the warehouse licence was illegal as it was effected without payment of duty on the warehoused goods, that duty had not been paid at the time of cancellation of warehouse licence and hence the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the case of any other goods and for which the relevant date for determination of the rate of duty is the date of payment of duty. The next submission is that the findings of the Commissioner that the provisions of Sec. 114(a) of the Act for imposition of panalty are not attracted supports the applicants stand that there has been no short-levy or non-levy of duty and hence the duty demanded in terms of proviso to Sec. 28(1) is not sustainable. Regarding imposition of penalty under Sec. 112, it is the applicants submission that there has been no contravention of Sec. 111(j) so as to warrant penalty as Sec. 111(j) is attracted only if any dutiable or prohibited goods are removed or attempted to be removed, from Customs area or warehouse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the date of payment of duty, is debatable and could be considered only at the time of hearing of the appeals. The issue as to whether it is the provision of Sec. 15(1)(b) or 15(1)(c) which will govern the case will also be gone into at the time of final hearing. However, we see force in the submission regarding non-contravention of Sec. 111(j) and consequent penalty under Sec. 112 as the goods have been removed with the permission of the proper officer. Having regard to the above as well as to the fact of payment of entire demand including the disputed duty demand of Rs. 36.23 crores, and also noting that interest of Revenue are safeguarded by having in its custody the goods of EOL worth Rs. 73 crores, we are of the view that no further ..... X X X X Extracts X X X X X X X X Extracts X X X X
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