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TMI Blog2013 (9) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... s ordered to be submitted – upon such submission rest of the duty to be stayed till the disposal. - stay granted partly. - C/55221-55222/2013 - SO/57073-57074/2013 - Dated:- 5-3-2013 - Archana Wadhwa And Rakesh Kumar, JJ. For the Appellants : Shri R Santhanam, Ajay Kumar, Advs. For the Respondent : Shri N Pathak, DR. Per: Rakesh Kumar: The facts leading to filing of these appeals and stay applications, in brief, are as under:- 1.1 The appellant are a trader importer importing chocolates, candies, toffees, fruit flavoured jellies and other confectionery items falling under Customs Tariff Heading Nos. 18069010, 20079990, 17040090, 19053219 and 20079990. Since on import of these items in addition to basic customs duty, ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actual MRP at which the goods are sold and also that the goods are being cleared without actually affixing labels containing the MRP declared to the customs on the goods, the residential premises of Rajesh Kumar Dugar and the premises of various dealers to whom, as per the information, the goods imported by Shri R.K.Dugar were being sold, were searched on 7.5.2008. One of the premises searched was of M/s. Ambay Traders, New Delhi, whose proprietor is Shri Vishal Arora, the second appellant. Other premises searched were- business premises of M/s. Super Pack India, New Delhi; Big Apple Show Room, M/s. Vidhya Ice and Cold Storage, New Delhi and residential premises of Shri J.S. Kohli, Prop. of M/s. Super Pack (India). Wherever the stock of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Dugar had already deposited an amount of Rs.50 Lakh during investigation, the same was ordered to be appropriated towards this demand; (b) Penalty of Rs.7 Crore was imposed on Shri Dugar under Section 112 of the Customs Act, 1962; (c) The seized goods valued at Rs.72,66,093/- were ordered to be confiscated even if the same have been released provisionally; and (d) Penalty of different amounts was imposed on various persons who had purchased the above mentioned goods from Shri R.K. Dugar (Penalty of Rs.1 Crore was imposed on Shri Vishal Arora, Proprietor, M/s. Ambay Traders under Section 112(b) of the Customs Act, 1962). 3. Against this order of the Commissioner, these appeals have been filed along with stay applications. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an amount of Rs.50 Lakhs during investigation and besides this, have furnished bank guarantee, of Rs.50 Lakhs which is still alive and thus the cash deposit of Rs.50 Lakhs and the bank guarantee is sufficient for the hearing of the appeal. As regards Shri Vishal Arora, it was pleaded that when there was no contravention of the prohibitions imposed under Section 11 of Customs Act, 1962 by the importer Shri R.K. Dugar and the goods imported were not liable for confiscation, and there was no justification for imposing penalty on Shri Vishal Arora and as such, there is a case for waiver from the requirement of pre-deposit in this case. As regards Sh. Vishal Arora, it was pleaded that there is absolutely no evidence to prove that the conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he interests of revenue and he may be required to pre-deposit duty demand confirmed against him along with interest and penalty imposed on him. With regard to Sh. Vishal Arora also he pleaded that there is no case for waiver. 7. We have considered the submissions from both the sides and perused the records. Prima facie, we find that while in terms of the provisions of Exim Policy, the goods, in question, prior to clearance from the customs should be affixed with the MRP, the stock of the goods which was seized was found to be without MRP stickers. We also find that all the dealers to whom the goods were sold have admitted that the goods were being purchased from Shri R.K. Dugar without MRP and it is Shri Dugar who were supplying the MRP s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. As regards Shri Vishal Arora, a penalty of Rs.1 Crore has been imposed under Section 112(b) of the Customs Act, 1962 on the basis that he purchased the goods imported by Shri R.K. Dugar which he knew or had reason to believe were liable to confiscation. Since for imposition of penalty on a person under Section 112 (b), it has be to proved that he had knowledge that the goods purchased by him were liable for confiscation and since the determination of this point involves evaluation of evidence, which is possible at the time of final hearing only, the requirement of pre-deposit of penalty by Shri Vishal Arora is waived for hearing of his appeal and recovery thereof is stayed till the disposal of the appeal. Both the stay applications stan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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