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TMI Blog2006 (1) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner of Customs has confirmed a duty demand of Rs. 6,69,40,149/- (Rupees six crores sixty-nine lakhs forty thousand one hundred forty-nine only) on 9 consignments of gold and silver imported by M/s. Aafloat Textiles (India) Ltd. (formerly known as M/s. Akai Impex Ltd.) (hereinafter referred to as importer) under Section 28 along with appropriate interest under Section 28AB of the Customs Act, 1962, by denying the benefit of exemption in terms of Notification No. 117/94-Cus., dt. 27-4-1997, upheld liability of the goods to confiscation under Section 111(d) and (o) of the Act, but since the goods were not available, has not ordered confiscation thereof, and inter alia imposed penalties equal to duty amount on the importer under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilver had been imported under SIL during the years 1996-97 and 97-98, that one M/s. Lalbhai Trading Co. and two others were the clearing agents; that Shri Prakash Mohta of Finance Department looked after the purchase of SILs. The Chairman of the importer company stated that he looked after negotiation and purchase of bullion and sale of bullion; that Shri Prakash Mohta looked after purchase of licences, clearance of goods, delivery, payment to supplier, etc. and that licence brokers through whom SILs were purchased and whom he knew, were Mr. Pachisia and Mr. Ketan Shah. The statement of Shri Prakash Mohta, was also recorded in which he confirmed that he was looking after purchase of SiLs for import of bullion and subsequently selling them i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ract. The finding of the Commissioner against the importers is that they had purchased SILs from Mahendra Shah, made payments and imported the silver/gold utilizing the bogus SILs and sold the imported goods in the local market. The show cause notice proceeds on the basis that Shri Mahendra Shah was the agent of the importers; however there is no evidence to support or substantiate this allegation. The Commissioner has not rebutted the stand of the importers that Mahendra Shah is not their agent. In these circumstances, there is no wilful misstatement or suppression of facts with an intention to evade payment of duty on the part of the importers so as to attract the proviso to Section 28(1) against them. We, therefore agree with the importe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the importers.
7. In view of our finding that the demands are barred by limitation, penalties imposed upon the importers are set aside. Penalties imposed on Shri Prakash Mohta, Shri S.N. Baheti, Shri Kamlesh Mehta and Shri Rasiklal Mehta are also set aside. The penalty imposed upon Shri Mahendra Shah under the provisions of Section 112(a) of the Customs Act, is also set aside as, even though he admittedly had knowledge that the SILs were forged/fake, such knowledge is not sufficient to hold that there was any omission or commission on his part so as to render the imported silver/gold liable to confiscation under Section 111(d) and (o) of the Act.
8. In the result, we set aside the impugned order and allow the appeals. X X X X Extracts X X X X X X X X Extracts X X X X
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