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TMI Blog2013 (9) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... mposed u/s 112(b) will not arise as the issue in all these cases was regarding improper export in the guise of industrial salt – All the other assesses had made out a case for waiver of pre-deposit of amount of penalties imposed by the adjudicating authority – Stay Petitions for waiver of pre-deposit of penalties were allowed – Decided in favor of assesses - Appeal No.C/109, 110, 114, 116, 133, 148, 225, 146, 223/2012 - S/2462-2470/WZB/AHD/2012 - Dated:- 21-11-2012 - Mr. M.V. Ravindran and Mr. B.S.V. Murthy, JJ. For the Appellant: Shri Pradeep Jain, Shri Sumerpuri Goswami, Shri S. Suriyanarayanan, Shri Pravin Saraf, Shri R. Subramanya, Shri Vijay Singh Gohil, Shri H.D. Dave, Shri Shantilal Mali, Shri P.V. Sheth, Shri Ashok Kumar Agarwal and Shri R. Subramanya, Advocates and Shri Z.B. Nagarkar, Sr.Consultant For the Respondent: Shri K. Sivakumar, A.R. JUDGEMENT Per: M.V. Ravindran: By this common order, we are proposing to dispose the following stay petitions which are filed for waiver of pre-deposit of the amounts of penalties against each applicant. SN Name of the appellant Penalty under Section 112(b) of Customs Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Advocate appearing on behalf of M/s Kumar Brothers would submit that the appellant herein in this case are the registered dealers of fertilizers. It is his submission that they are registered with the State Government and are required to procure the same from registered importer of fertilizers and in this case they are M/s Indian Potash Ltd. He would bring to our notice the fact that they had maintained proper record as required under Fertilizer Control Act and submit that there cannot be any penalty imposed on them. 5. Shri R. Subramanya, ld. Advocate is appearing other appellant s viz.Shri Pravin Saraf and Shri Ashok Kumar Agarwal also. It is his submission that the adjudicating authority has not brought on record any act, collusion or omission on behalf of these two appellants in respect of current consignment of MOP being sought to be exported as industrial salt. It is his submission that in any case, the penalty under Section 112(b) of Customs Act, 1962 is not imposable. As the goods were sought to be exported and not imported as the import was done by M/s Indian Potash Ltd. 6. Shri Pradeep Jain, ld. Advocate appearing on behalf of M/s Kailashpati Chemicals Mineral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces that may be produced. 9. Shri Z.B. Nagarkar, Sr. Consultant appearing on behalf of M/s Classic Freight Forwarders would submit that the appellant herein is nothing but a CHA. It is his submission that as a CHA, his duty to file the documents was done properly and all the authorizations were received in proper form. It is his submission that the authorization given by M/s Kailashpati Chemicals Mineral Industries were produced and it is his submission that this authorization act as a CHA in filing shipping bills and Bill of Lading is not disputed by said M/s Kailashpati Chemicals Mineral Industries or by the assessee. It is his submission that the finding of the adjudicating authority that one of their employees had lent his name for a consideration of Rs.200 per container for the export is an issue for which they have already removed the employee and said act was done by the employee on his personal capacity. 10. Ld. D.R. submits that all the appellants herein have played some role or other in trying to defraud the Revenue by exporting MOP which is a fertilizer in the guise of industrial salt. It is his submission that the role played by each of them needs to be appreci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We make it clear that we have not expressed any opinion on the merits of his case and are keeping all issues open. The views expressed by us in the stay orders of other appellants are in respect of those appellants only. 14. As regards other appellants, we find that the penalties imposed on other appellants under Section 112(b) of Customs Act, 1962 will not arise as the issue in all these cases is regarding improper export of MOP in the guise of industrial salt. Prima facie, to that extent, all the other appellants have made out a case for waiver of pre-deposit of amount of penalties imposed by the adjudicating authority under Section 112(b) of Customs Act, 1962. Accordingly, the Stay Petitions for waiver of pre-deposit of penalties under Section 112(b) of Customs Act, 1962 are allowed and recoveries thereof are stayed till the disposal of appeals. 15. As regards penalty imposed by the adjudicating authority under Section 114(i) of Customs Act, 1962 on various appellants, we find that:- i) M/s Kumar Brothers and M/s Classic Freight Forwarders both of them have, prima facie, convinced us that penalty cannot be imposed on them for the reason that M/s Kumar Brothers have pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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