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TMI Blog2008 (10) TMI 559X X X X Extracts X X X X X X X X Extracts X X X X ..... ey applied for change in location of the premises from Turbhe to Bhiwandi which change was approved by the Jt. Development Commissioner SEEPZ in September, 2000. The premises at Bhiwandi was licenced under Section 58(1) of the Customs Act 1962, as a private Bonded Warehouse for storage of imported/indigenous goods without payment of Customs/Central Excise duty. The Dy. Commissioner of Central Excise had also permitted M/s. Aroma International to carry on operation relating to manufacture of processed spices and betel nuts at the above private bonded warehouse. As per the letter of permission, they were required to undertake manufacture of processed spices, whole and ground in consumer/bulk packing and betel nuts/whole and splits, crushed and ground etc, to the extent of 700 MTs and towards the fulfillment of export obligation. They were required to achieve exports for the aggregate FOB value of US$ 41,66,640 in a phased manner over a period of 5 years. Investigations revealed that Shri Dinesh Meghani who had signed all the applications in the capacity of proprietor of M/s. Aroma International was a front person who allowed the operations of the EOU to be carried out in his name for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. The notice also alleged that imports of cloves from Singapore were under invoiced as the unit rate was lower than that published in the Spices Market Bulletin. It was, therefore, proposed to adopt the Spice Market Bulletin price for the purpose of assessment and levy of differential duty of Rs. 70,36,317/- on 11 consignments of cloves imported by the EOU. The notice also proposed confiscation of six exported consignments of chilly powder procured locally and not spice powder manufactured by utilizing the imported duty free raw materials, and confiscation of spices and Betel Nuts imported duty free and diverted into local market. Confiscation was also proposed on the ground that cloves imported by EOU were undervalued. Penal action was proposed against Shri Piyush Meghani, who was treated as the mastermind of fraud executed through Shri Dinesh Meghani, Shri Dinesh Meghani, Vishal Export Overseas Ltd., its Director Shri Pradeep S. Mehta, Shri Bhumish M. Shah, Indenting Agent, Ashok Kumar B. Achary, proprietor of M/s. Ask International and Shri Shammi Chanana, Prop. of M/s, Rohit International. The notice was adjudicated by the Commissioner of Customs who held that the goods were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld. counsel for M/s. Vishal Export Overseas Ltd. that since they are not importers of the consignments in question, penalty cannot be imposed under the provisions of Sec. 114A of the Customs Act, in view of the language of the Section which reads as under :- 114A - Penalty for short-levy or non-levy of duty in certain cases - Where the duty has not been levied or has been short levied or the interest has not been charged or paid or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any willful mis-statement or suppression of facts, the person who is liable to pay the duty or interest, as the case may be, as determined under sub-section(2) of Section 28 shall, also be liable to pay a penalty equal to the duty or interest so determined. We, therefore, set aside the penalty imposed on M/s. Vishal Exports Overseas Ltd. and allow Appeal No. C/559/05 8. The contention of Shri Pradeep S. Mehta, Director of M/s. Vishal Exports Overseas Ltd. is that in the normal course of business, he had entered in a contract with M/s. Aroma International to sell the warehoused goods; that at the time of negotiation he was not aware that M/s. Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to render goods liable to confiscation and to render him liable to penalty. 10. We have considered the above submissions. The role of Shri Bhumish Shah was limited to getting the faxes from the supplier and giving them to the importer M/s. Aroma International. He was neither concerned with the price nor was he a conduit to payment of differential price. The finding of the Commissioner that even though Shri Bhumish Shah was well aware of that fact of two sets of invoices issued by the foreign supplier, he did not inform the Customs and therefore, he has tacitly connived with the importer in misdeclaring the value of the goods and hence abetted the importer, is not tenable for the reason that Shri Bhumish Shah was only to provide the invoices sent by the supplier. He cannot be held guilty of abetment. We, therefore, set aside the penalty imposed upon him under Sec. 112(a) and allow Appeal No. C/708/05-MUM. 11. Shri Shammi Chanana, Proprietor of M/s. Rohit International which was found to have been effected exports of chilli powder in the guise of spices powder is liable to penalty as he had actively participated in the misdeclaraton of export goods and consciously permitted Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 respondents in the appeals of the Revenue, we find that no case has been made out by the department. Penalty was imposed on M/s. Vishal Exports Overseas Ltd. only under the provisions of Sec. 114A which we have set aside in the earlier part of our order. Penalties have been imposed on Shri Ashok Kumar Acharya, the proprietor of M/s. Ask International India and Shammi Chanana, Proprietor of M/s. Rohit International under the provisions of Sec. 114(i), (ii) (iii) - no appeal has been filed by M/s. Ask International India against penalty which is therefore upheld. We have already upheld the penalty imposed on Shri Shammi Chanana, the proprietor of M/s. Rohit International. Therefore, no ground exists to entertain the Revenue s appeals against M/s. Vishal Exports Overseas, Shri Ashok Kumar Acharya and Shri Shammi Chanana and accordingly dismiss Appeal Nos. C/607, C/605 608/06. As regards, Shri Pradeep S. Mehta and Shri Bhumish a single penalty has been imposed. We have already upheld the penalty imposed on Shri Pradeep S. Mehta and set aside the penalty on Shri Bhumish M. Shah and therefore no ground remains for consideration of the appeals of the Revenue against these two perso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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