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TMI Blog2015 (7) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... us provisions with the direction in view of modus operandi in the case of earlier consignments of the appellant. The containers lying in ICD, TKD, New Delhi for which no Bill of Entry was filed by the appellant. 3. The investigation was started by the Customs (SIIB), ICD, TKD, New Delhi and discovered that the appellant had imported 22 containers of the plastic scrap from M/s GDB International INC. USA and not filed any Bill of Entry for clearance of the said containers. However, a legal notice dated 29.3.2007 was received by ICD, TKD issued by Shri Pradeep Jain on behalf of the supplier of the goods wherein it is stated that the supplier has exported 22 containers containing plastic scrap to the appellant as per their order and that later on, it was learnt that there were certain investigations pending against the appellant by DRI and due to which some alert was issued to the said appellant by the Indian Customs, that the said facts were not disclosed to his client by the appellant and his client was unpaid seller as the document sent to the consignee have returned back unpaid. Accordingly, his client continues to be absolute owner of the said goods and the appellant has also giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arranted on the appellant as they were not in any way connected with the shipment. To support this contention, he relied on the decision of CCE, Goa Vs. Kabul Textiles (LLC) 2006 (206) ELT 1173 (Bom.) which has been affirmed by the Apex Court in 2007 (218) ELT A 112 (SC), Arya International Vs. CC, Kandla 2010 (258) ELT 441 (Tri.-Ahmd.) and Rayal Impex Vs. CC, Chennai 2007 (211) ELT 71 (Tri.-Chennai). He further submits that the appellant came to know about these containers first time when they received intimation from their bankers regarding receipt of the shipping documents from the exporter. The appellant immediately informed the bankers that these goods have not been shipped as per their purchase order and they are not concerned with these goods. The bankers returned the document to the exporter, thereafter, the exporter requested to the appellant to issue No Objection Certificate which the appellant did. In the No Objection Certificate, the appellant has categorically stated that the appellant is not authorised consignee of the impugned goods and on the basis of said NOC issued by the appellant, the exporter applied for there export of the goods before the cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, therefore, the penalty on the appellant is rightly imposed. He also submits that case law relied upon by the appellant have no relevance to the facts of this case and Revenue has been able to prove modus operandi of the appellant. Therefore, the penalty is rightly imposed on the appellant. In these circumstances, it is prayed on behalf of the Revenue that penalty is imposable on the appellant. 7. Heard the parties. Considered the submissions. 8. In this case the short issue involved whether in the facts and circumstances of the case, the penalty can be imposed on the appellant under Section 112(a) of the Customs Act, 1962 or not. 9. In this case it is admitted fact the appellant has not filed any Bill of Entry for clearance of the impugned goods and it is also a fact that on examination of the goods, the goods were found other than the goods declared in the IGM. The case of the Revenue is that when the investigation against the appellant has been started In November, 2006, the appellant disowned the goods. Therefore, the penalty is imposable. But in this case, it is the contention of the appellant that they have not placed any order on the supplier of the goods to supply the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the non-observance of the condition was sanctioned by the proper officer; 3[(p) any notified goods in relation to which any provisions of Chapter IVA or of any rule made under this Act for carrying out the purposes of that Chapter have been contravened.] On analysing the above provisions, we find that from a plain reading of provisions of sub-section (n) and (o), it is clear that these provisions are not applicable to the case. In fact Section 111(n) deals with transit/transhipment of goods. Section 111(o) deals with a situation where certain claim is claimed subject to some condition and subsequently the said condition is not followed. In the present case, it is not a situation. In fact, the impugned goods were never cleared from Customs therefore claiming exemption does not arise. Consequently, the provisions of Section 111(n) and (o) are not applicable to the facts of this case. 11. Further, we find that to invoke Section 111 (m) of the Act which deals with a situation where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and other particulars of the goods. Hence it is absurd for the DRI to have ventured to such an exercise. Surprisingly, this absurdity was sustained by learned Commissioner in the impugned order. 13. We further find that only ground for imposing penalty in this case by the adjudicating authority that the appellant was having the modus operandi and have placed the order on the supplier of the goods but no efforts were made to ascertain the fact that whether the appellant has placed the purchase order on the supplier of the goods or not? Moreover, when the Manager of the appellant was called for recording the statement, he has categorically stated that the appellant has not placed any order on the supplier of the goods and this fact has been confirmed by the act of the supplier when he sought re-export of the goods before the Revenue. If the supplier had supplied the goods at the request of the appellant, in that case, the supplier would have taken legal action against the appellant also but the supplier has asked for No Objection Certificate from the appellant. This act of the supplier shows that the supplier has supplied the goods without obtaining purchase order from the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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