9911796707
TMI Blog2007 (4) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... C/1285/06, C/1287/06 and C/1288/06 are filed by the Director and Employees of the appellant company whose appeal number is C/1286/06. 3. The relevant facts that they arise for consideration are that the appellant (Appeal No. C/1286/06) are granted an industrial license to set up an unit is SEEPZ and were availing the benefit of Notification No. 196/87-Cus. as superceded by Notification No. 177/94-Cus. On 9-12-1994 Shri Varun Dhuru, diamond assorter, working with the appellant company was caught while going out of SEEPZ area with assorted diamonds collectively valued at Rs. 5.53 lakhs and the said diamonds were seized for violation of conditions stipulated under Notification No. 196/87-Cus. The said diamonds were however retuned back ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re challenging the penalties imposed on them while in Appeal No. C/1286/06, the appellant company is challenging the confirmation of the demand of the duty and penalties imposed under Customs Act as well as in Central Excise Act and absolute confiscation. It is his submission that the appellant are not manufacturers of cut and polished diamonds but are manufacturers of jewellery studded with diamonds. For manufacturing of gold jewellery studded with diamonds, the appellant company imports cut and polished diamonds and has never imported any rough diamonds since their registration with the Government in the year 1986. It was also submitted that the Revenue has proceeded for confirmation of demand of duty based on a misconception that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord that the appellant had imported only cut and polished diamonds. 7. The show cause notice which was issued to the appellant clearly directs the appellant as under : (a) "The Export oriented unit namely M/s. S.B. & T. Intel. Ltd. was granted Industrial Licence to set up the unit in SEEPZ with an inherent condition that the entire production shall be exported to CCA countries and are governed by the provisions of Para 94 of Export and Import Policy 92-97. The Import Trade Control Provisions relates both to the condition under which the imported inputs (rough diamonds in this case) and the end product are subjected to. The various provisions laid down under the said para permit the import of rough diamonds on the condition that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for export, the clearances of the same for import violates the provisions of Para 94 and thereby The Foreign Trade (Development and Regulations) Act, 1992. This reveals an offence attracting the provisions of 111(d) of the Customs Act, 1962 as well as 111(o) of the Customs Act, 1962 and provisions of Section 112 of Customs Act, 1962. The rough diamonds by themselves not available ex facie for purported confiscation under the said Section of the Customs Act, 1962, nevertheless, it shall be presumed by this notice that their notice that their liability for confiscation in law is just and concurrent and lies translated to their recognizable form today namely, the impugned seized diamonds. (b) Whereas it is also prima facie revealed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employee of the said firm is also not substantiated as the other persons have also indicated Shri Varij Sethi". From the above reproduced portion of the ld. Commissioner (Appeals) order, it can be seen that the Commissioner (Appeals) has based his findings on the ground that the appellant company was granted licence for manufacture of cut and polished diamonds and studded jewellery. These findings are totally contrary to the licence, which has been issued to the appellant company by the Ministry of Commerce. When the appellant is licenced only to manufacture studded jewellery and not for cutting and polishing rough diamonds, it is inconceivable that the appellant had manufactured seized and confiscated cut and polished diamonds. Further, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e subject to checks by authorities. In view of these facts, the demand of the Central Excise duty on the appellants and subsequent penalties imposed under the Central Excise Act and Customs Act, are not sustainable. Hence the order to the extent it confirms the demand of the excise duty, and imposition of penalty on all the current appellants is liable to be set aside and I do so. 9. As regards the absolute confiscation of the seized diamonds, I find that these diamonds were found on a person who was leaving the SEEPZ area without any documents. It is surprising that the authorities below, having seized diamonds on 9-12-1994 released the same to the person from whom it was seized without any verification as to the veracity of the subm ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
