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TMI Blog2014 (10) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... penal liability on the firm M/s Dilmeet Corporation was reduced from Rs. 10 lakhs to Rs. 5 lakhs under Section 112(a) of the Customs Act, 1962. 2. The appellant M/s Dilmeet Corporation (appeal No. C/14/07), is in appeal against sustenance of penalty of Rs. 5 lakhs, whereas the Revenue is in appeal against reduction of penalty on the firm and dropping of penalty on the ex-partner. As common question of facts and law are involved in all the cases, the appeals are taken up together for disposal. 3. The brief facts as evident from the Order-in-Original and the Order-in-Appeal and other documents on record is that M/s Dilmeet Corporation is a trading firm and Shri Manmohan Singh Kohli was earlier partner and then proprietor of the said firm. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onths by him or by their sister concern and the goods were always cleared for home consumption without any hitch or objection. After filing the Bill of Entry, the appellant realized that the goods did not contain the 1% Cerium and this will not be suitable for use in the manufacture of Gas Mantles. Further, the goods did not confirm with the requirement of purchase order placed with the supplier. Inspite of the fact that the Bill of Entry was assessed on 6.6.1996 and returned to them for taking delivery of the goods, the appellant decided not to clear the goods. Further, in response to Auction Notice in April, 1997 issued by Mumbai Port Trust, the appellant did not object to the same as they were not interested in clearing the goods being n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were analyzed at BARC and it is confirmed that they are radioactive and are thorium compounds. Pursuant to the report, the Customs department seized the goods vided Seizure Memo dated 27.3.1997. The importer firm and its partner were required to show-cause as to why the 60 drums of radioactive thorium nitrite weighing 3MT, valued at 10,31,671/- (CIF) under seizure should not be confiscated under the provisions of Section 111(d) of the Act and why not penalty be imposed on the firm and its erstwhile partner Mr. M.S. Kohli under Section 112(a) read with Section 111(d) of the Act. 4.2 That the importer firm and its partner contested the show-cause notice on the ground that as per their understanding the goods are freely importable. They and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... involved in any clandestine import and clearance, they would have taken steps for the immediate clearance of the goods, upon assessement of the Bill of Entry and return of the same to them as back as on 6.6.1996. 4.3 The Joint Commissioner of Customs vide Order-in-Original dated 27.1.2006 recorded the finding that the importer and its partner have been negligent in informing the authorities that the goods landed at the Port were radioactive and they have failed to abandon the goods as per the true Import of Section 23(2) of the Customs Act and hence, the goods in question cannot be considered as abandoned and accordingly, the goods were held to be liable for confiscation, hence, the same were absolutely confiscated. Further, a penalty of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents to the Bank of the supplier in China. It is important to take notice of the provisions of Section 23, which reads as under:- "SECTION 23: Remission of duty on lost, destroyed or abandoned goods. - (1) Without prejudice to the provisions of section 13, where it is shown to the satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner of Customs that any imported goods have been lost (otherwise than as a result of pilferage) or destroyed, at any time before clearance for home consumption, the Assistant Commissioner of Customs or Deputy Commissioner of Customs shall remit the duty on such goods. &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive nature of the goods which was lying in the Port premises for over a year thereby creating risk of health hazard. Therefore, he prays for allowing the appeal of the Revenue by restoring the amounts of penalty as imposed in the Order-in-Original. 7. Having heard both sides and on careful consideration, I hold that the importing firm had abandoned the goods in question in April-August, 1996 by their various acts of not getting the goods cleared for home consumption and not opposing the auction sale by the Port Trust and by returning the documents of title to the supplier through their Bankers. It cannot be said that the customs authorities had no notice of any of these facts for about 9 months from June, 1996 to March, 1997. It is furth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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