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TMI Blog2015 (12) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... anaraynan, Advocate And Shri Paresh V Sheth, Advocate For the Respondent : : Shri Alok Srivastava, Authorised Representative ORDER Per : Mr P.M. Saleem, The four appeals in this matter have been filed aggrieved by a common Order in Original of the Commissioner, Customs, Kandla, and therefore we take-up all the four appeals together for disposal. 2. The brief facts of the case are as follows. M/s DMP Enterprises, Gandhidham, imported a consignment from M/s B S Trading Co Lle, Dubai, and filed Bill of Entry No 114575 dtd 12.6.2007 for clearance of the goods declared as Baby Diapers . In the course of inspection of the container by the Customs Officials on 11.7.2007, it was found that in the front side of the container boxes containing Pamper brand diapers were stacked and behind it there were other boxes that were found to contain cosmetics and toiletry preparations ie., perfumes, deodorants, soaps, shampoos, talcum powder, hair gel and other goods having origin from France, UK, Thailand, Germany, USA etc. After investigation, a show cause notice dtd 1.1.2008 was issued which was adjudicated by the impugned Order in Original. 3. Heard both sides. 4. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by diapers at Mundra; that he introduced Shri Jitubhai to his brother-in-law Shri Bipin Shah who is the proprietor of M/s DMP Enterprise; that he did not arrange for any warehousing of the goods of M/s DMP Enterprise as the sae was beng looked after by Shri JItubhai. 27. Whereas it appears from scrutiny of the bank account statements of M/s Aditya Logistics and of Shri Jayesh S Shah also reveals that Shri Jayesh S Shah used to transfer money to M/s Aditya Logistics from time to time which was used, among other things, towards payment of duty of the goods imported by M/s DMP Enterprises, towards the payment CHA charges, handling charges etc. In view of all these facts brought on record during the curse of investigation, it appears that the retraction of Shri Jayesh Shah as discussed in Para 23 above is liable for rejection as the same is factually incorrect tutored and malafide. 7. The Learned Counsel argued that Shri Bipin Shah was an importer only in name sake and Shri Jayesh S Shah was the real person behind the import, and therefore pleaded that the penalty of ₹ 10 lacs imposed on him by the impugned Order in Original should be waved. He also relied on the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that Shri Jayesh S shah and Shri Jitu had planned the import of branded Diaper under the guise of unbranded diaper and that he has introduced Shri Jitu to his brother-in-law Shri Bipin J Shah. He also drew the attention of the Bench to the statement of Shri Bipin J Shah dtd 25.7.2007 (relevant portion of which has also been reproduced earlier) wherein Shri Bipin J Shah stated that the whole idea of import of branded Baby Diapers was that of Shri Jayesh S Shah who was doing business of import of perfumes, deodorants, soaps, shampoos, talcum powder etc., and that Shri Jayesh S Shah had asked him to start business of import of Baby Diapers and that only the name of Shri Bipin J Shah was used for the purpose and rest of the things such as all the arrangements starting from contacting the overseas supplier final arrangement, clearance from Customs, payment of customs duty, payment of CHA charges, transportation charges, transportation of the cleared goods to Mumbai and the subsequent sale was being looked after by Shri Jayesh S Shah. The Ld. Authorised Representative also drew the attention of the Bench to Para 27 of the show cause notice wherein it is mentioned that the Bank acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same and has argued that his role is limited to extending ₹ 25 lacs to Shri Bipin J Shah who is his bother-in-law. From the facts of the case, we find that there is no dispute that the mis-declared goods have been imported under the name of the proprietorship firm of Shri Bipin J Shah. He has also filed Bill of Entry and pre-deposited ₹ 25 lacs towards differential duty for all the 11 consignments of the impugned goods during investigation. Therefore, we find that Shri Bipin J Shah cannot escape from the mischief of importation of mis-declared goods. Therefore, the duty of ₹ 17,51,707/- demanded from his proprietorship firm, under the impugned Order in Original, alongwith interest as applicable, is upheld. 13. As regards penalty on Shri Bipin J Shah, the Revenue has filed an appeal praying that equivalent penalty under section 114A should be imposed on the proprietor-ship firm. We find that by the impugned Order in Original, the Adjudicating authority has imposed a penalty of ₹ 10 lacs on Shri Bipin J Shah, Proprietor, and has not imposed any penalty on the proprietor-ship firm of Shri Bipin J Shah. It is settled law that no penalty can be imposed on bo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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