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TMI Blog2013 (10) TMI 1004X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscation under Section 113 (d) of the said Act as the same were attempted to be exported through another EOU contrary to the provisions under said Act and the Notification No. 53/97-Customs dated 3.6.1997, as amended, I hold that the Customs duty of ₹ 24,37,818/- on the imported polyester fabrics measuring 52829.92 meters and valued at ₹ 22,45,759/- vide Bill of Entry No. 539120 dated 22.01.2002 and IMP-B-B-601007 dated 15.02.2002, so diverted in the local market, and not utilized for intended purpose is recoverable from Notiee-1 under proviso to Section 28(1) of the said Act read with Notification No. 53/97-Cus dated 3.6.1997, as amended Noticee-1 is also hold liable to penal action under Section 114 as well as under Section 112 of the Said Act. The license granted to noticee-1 under Section 58(1) of the said act is also held liable to be cancelled under Section 58(2) of the said Act for contravention of the provisions of the said Act. Commissioner (Appeals) has rightly held that Shri Karamveer Singh, Proprietor M/s Singh Overseas is liable for action under section 112 of Customs Act, 1962 for the contraventions of the provisions of Customs Act, 1962. Accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of Sections 60, 62, 67, 71 and 72 of the Customs Act, 1962. Noticee-1 transferred the imported fabrics as such without permission of the proper officer in violation of the conditions of the said notification and without intimation to the proper officer regarding receipt of imported goods without payment of custom duty in their 100% EOU, without examination of goods by the proper officer at the time of removal of the goods from their 100% EOU and without issuance of re-warehousing certificate by the proper officer in violation of the provisions of the above said sections of the Customs Act. It is evident that noticee no. 1 suppressed the receipt of imported fabrics in their factory and clearance thereof in order to willfully avail undue benefits of Notification No. 53/97 Customs dated 3.6.97, as amended. The Noticee-1 informed vide letter dated 20.6.2002 that they had removed the imported fabrics on 11.6.2002 to noticee-2, though the private bonded warehouse licence No. 1/2001/SO/RTK/100%/EOU dated 24.7.2001 was suspended by the Assistant Commissioner, Central Excise Customs Division, Rothak on 21.5.2002. Said clearance were without that authority of law. Since the said goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and classification of fabric as polyester dyed fabric was proposed with imposition of penalty on noticee 1 and 2. 5. M/s Shri Karamveer Singh, Proprietor of M/s Singh Overseas has contended that he has retracted the statement dated 11.2.2002 and 12.2.2002 vide his letter dated 13.2.2002. But no such retraction is available on record. As such party s contention is rejected as unsubstantiated. Further, the admissions made by Shri Karamveer Sigh in his statements dated 11.2.2002 12.2.2002 are corroborated by the facts that at the time of visit by the officers, the unit was found not working, no finished goods or any kind of packing material, designs, patterns, liable or other apparel accessories were founding the unit evidencing no manufacturing activity being undertaken in the unit. 6. It is observed that the polyester fabric covered under both the Bill of Entry No. 539120 dated 22.1.2002 and IMP-B-B-601007 dated 15.2.2002 were imported by the appellants without payment of Customs duty leviable thereon under Notification No. 53/97-Cus dated 3.6.97 as amended which allowed exemption from payment of Customs duty to specified imported goods to be used for production of goods for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder ARE-3 No.1 and 2, both dated 11.6.2002 to M/s Shiv Shakti Industries, Plot No. 450 A, G.I.D.C. Near 1st Water Tank, Ankleshwar (Gujarat) (here-in-after called as M/s SSI) against CT-3 No. 51 dated 11.06.2002 issued by the superintendent, Central Excise. Since the Private Bonded Warehouse Licence of the appellant was suspended w.e.f. 21-05-2002, clearance effected by appellant under ARE-3 No. 1 2, dated 11.06.2002 was found to be without examination and without issuance of re-warehousing certificate by the proper officer. The Deputy Commissioner, Central Excise Customs Divisions, Ankleshwar was accordingly requested to detain the said goods supplied by the appellant to M/s SSI. Three representative samples of the sold fabrics, were drawn by the Officers of Central Excise and Customs, Division-I, Ankleshwar in presence of M/s SSI and sent to the Chemical Examiner, Central Excise Customs, Laboratory, Vadodra for testing to ascertain the composition thereof. The test report received from the Chemical Examiner of the above Laboratory under their letter no. RCL/SU/C. Ex./2002-03/116/946 dated 13.12.2002 exhibited the composition as Knitted Fabrics which was classifiable un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the imported fabrics into local market had, vide their letter dated 20.6.2002 to Noticee-2 through, the Private Bonded Wareshouse License No. 1/2001/SO/RTK/100%EOU dated 24.07.2001 was suspended by the Assistant Commissioner, Central Excise Customs Divisions, Rothak on 21.5.2002 and, therefore, clearances said to have been effected on 11.6.2002 were in contravention of the provisions of Section 60, 62, 67, 71 72 of the said Act. It is observed that Noticee-1 after realizing the contravention of the above said Section of the said Act tried to fabricate the facts by further mis declaring that the imported fabrics were cleared to Noticee-2 on 20.5.2002 and 21.5.2002. 14. The seized polyester dyed embossed fabrics has been found to be actually knitted fabrics classifiable under Chapter 60 of CTA as is evident from the test report and the said fabrics do not correspond to the material imported i.e. polyester fabrics 58/60 and 100% polyester dyed fabrics 58/60 of chapter 54 of Customs B=601007 dated 15.01.2002 filed by Noticee-1 under Section 46 of the said Act and claimed to have been sent to Noticee-2 by Noticee-1 under ARE-3 No.1 2, both dated 11.6.2002, therefore, the seiz ..... X X X X Extracts X X X X X X X X Extracts X X X X
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