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TMI Blog2014 (8) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... the seized goods become liable to confiscation under Sec. 111(0) of Customs Act 1962, as proposed in the show cause notice dt 26/3/2002 and correctly confirmed by the adjudicating authority. As the appellant has played an active role in import and diversion of imported goods conditionally exempted under Notification No. 7/2001-cus hence penalty is correctly imposable upon the appellant under Sec. 112 of the Customs Act 1962. However, looking to the value of confiscated goods (Rs 49.25 lacs and RS 15.26 lacs), and what could have been the intended benefits out of such diversion, it is felt that penalty of ₹ 25 lakh imposed by the Adjudicating authority is excessive. In the interest of justice, we reduce the penalty imposed upon the appellant from ₹ 25 lacs to ₹ 5 lacs under Se. 112 of the customs Act 1962 - Decided partly in favour of appellant. - Appeal No. : C/1337/2005 - ORDER No. A/11505/2014 - Dated:- 21-8-2014 - Mr. M.V. Ravindran and Mr. H.K. Thakur, JJ. For the Appellant : Shri Paritosh Gupta (Adv.) and Shri P M Dave (Adv.) For the Respondent : Shri Alok Srivastava (AR) JUDGEMENT Per : Mr. H.K.Thakur: This appeal has been listed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... huj were involved in misusing the benefit available under Notification No. 7/2001-cus by diverting the imported goods for other purpose to places outside Gujarat. A vehicle transporting the imported old and used woollen and synthetic readymade garments was seized by DRI on Delhi-Jaipur Highway. After detailed investigation a show cause notice dt 26/3/2002 was issued, inter-alia, to the appellant. Appellant did not file reply to the show cause notice and also did not offered the personal hearing but seem to have submitted written submission later that he was not involved in the case. Adjudicating authority, therefore, imposed a penalty of ₹ 25 lakhs upon the appellant. 5. Shri P M Dave (Adv.) and Shri Paritosh Gupta (Adv.) appeared on behalf of the appellant. It was argued by the Learned Advocate Shi P M Dave that appellant is a paid employee of the CHA M/s Kandla clearing Agency and was drawing a salary of ₹ 5000/as correctly mentioned in CESTATs order dtd 18/8/2009 while setting aside the penalty upon the appellant. It was his case that appellant has acted as an employee of the CHA under the instructions of his superiors and was not getting benefited in any manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to this Bench for deciding the matter afresh by passing reasoned order. The question framed in Para 2 above was thus in the affirmation by the jurisdictional Gujarat High Court. The issue before us for disposal is whether penalty imposed upon the appellant under Sec. 112 of the Customs Act 1962 is justified or not. 7.1 Role played by the appellant Shri Dev Kumar Kapta is reflected in Para 8, 9 and 14 of the OIO dt 31/3/2005 passed by adjudicating authority and these Paragraphs are reproduced below : 8) Statement of Shri Suresh Kumar Bhatia were recorded on 3.10.2001, 11.10.2001 and 20.10.2001 in his statement dated 3.10.29001 he interalia stated that he is the representative of M/s Kandla Clearing Agency. Gandhidham: that in case of M/s Kandla Clearing Agency. Shri Dev Kumar Kapta informed him that they had received import documents of two trusts viz., M/s Nopaji Lakhamji Charitable Trust and M/s Shivam Development Trust from Motilal Saraf of M/s Radha Yarn P Ltd that for these trusts two bill of entry No. 8835 and 8836 both dated 25.9.2001 were filed for self clearance that Dev Kumar Kapta had signed as authorised signatory of the Trust; that he has knowledge t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arding clearance of the goods were supervised by him; that therefore the document are filed in self clearance that for the clearance of the goods pertaining to Shri Nopaji Lakhmaji Charitable trust he was authorised by Shri Shantilal Jain by Power of Attorney that accordingly he had signed all the papers alongwith Bs/E pertaining to Shri Nopajai Lakhmaji Charitable Trust that for other parties he was received the papers from Shri Suresh Bhatia; that after clearance from the customs, the transportation and further disposal of the goods were carried out under the supervision of Shi Suresh Bhatia and Shri Motilal Saraf. In his statement dated 11/10/2001, he inter-alia stated that as per the directions of Shri Suresh Bhatia he was attending to the work relating to duty free clearance in the name of Charitable Trust and after clearance he was handing over the copy of the Bs/E pertaining to M/s Radha Yarn and M/s Radha Textiles, that the address of M/s Radha Yarn and M/s Radha Textile is of Mumbai in the Bills of Entry, however after putting the white ink, he was typing the address of Panipat and zerox copy of fabricates Vs/E were sent with the trucks that he had been authorised by Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty free clearance of goods under this exemption notification was subject to condition (i), (ii), and (iii) of the Notification. As these conditions have not been fulfilled the seized goods become liable to confiscation under Sec. 111(0) of Customs Act 1962, as proposed in the show cause notice dt 26/3/2002 and correctly confirmed by the adjudicating authority. As the appellant has played an active role in import and diversion of imported goods conditionally exempted under Notification No. 7/2001-cus hence penalty is correctly imposable upon the appellant under Sec. 112 of the Customs Act 1962. However, looking to the value of confiscated goods (Rs 49.25 lacs and RS 15.26 lacs), and what could have been the intended benefits out of such diversion, it is felt that penalty of ₹ 25 lakh imposed by the Adjudicating authority is excessive. In the interest of justice, we reduce the penalty imposed upon the appellant from ₹ 25 lacs to ₹ 5 lacs under Se. 112 of the customs Act 1962. 8. In view of the above observations, appeal filed by the appellant is only allowed to the extent indicated in Paragraph 7.3 above. (Pronounced in the Court 21.8.2014) - - TaxTMI - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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