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TMI Blog2016 (11) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... October, 2004. After detailed follow-up investigation, proceedings were initiated against the respondent for violation of the provisions of Export Import Policy, 2002-2007 read with Foreign Trade (Regulation) Rule 1993, Customs Act, 1962 and Central Excise Act, 1944. The allegation is that the respondent imported duty free cloves for use in the manufacture of spices, however, they have diverted 130.2 MT of the said duty free imported items and not utilized it for the intended purposes. The customs duty of Rs. 1,01,37,500/- is sought to be demanded on these grounds. Further, central excise duty of Rs. 19,42,899/- short paid by the respondent on advance DTA sales is also sought to be recovered. The case was adjudicated and the original autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quantity of final products as claimed by them. The revenue also contended that there is no finding by the Original Authority regarding penalty on Shri Deepak Kumar Agarwal. 4. We have heard both the sides and perused the appeal records. 5. The first point is regarding alleged diversion of 130.31 M.T. of imported cloves. We find that on the date of verification of the respondent, they had a stock of 83,640 kgs of Hot Mix Masala. However, the Revenue contends that the respondent do not possess the required facility to make the final product as approved by the Development Commissioner. We find that the presence of huge quantity of final product on the date of visit of the officers has not been examined and explained by the Revenue. Furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arwal, we note that the contention of the Revenue is correct to this effect. On examining the appeal records, we note that Shri Deepak Kumar Agarwal was issued with a show cause notice for imposing penalty under Rule 26 of the Central Excise Rules, 2002. The allegation against him is that he is a major buyer of the product manufactured by the respondent and he tried to mis-lead the Department and hamper the investigation by creating firms in the name of dummy owners and in collusion with others. We find that in view of the main conclusion arrived at by the Original Authority, no penalty could be imposed on Shri Deepak Kumar Agarwal and as such, we find that there is no merit in the appeal filed by the Revenue on this ground also. 8. Accord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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