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TMI Blog2017 (11) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... ant. - C/50435/2015-CU[DB] - C/A/57373/2017-CU[DB] - Dated:- 26-10-2017 - Mr. (Dr.) Satish Chandra, President And Mr. V. Padmanabhan, Technical Member Present Shri A.K. Prasad Ms. Surabhi Sinha, Advocate for the appellant Present Shri Govind Dixit, DR for the respondent ORDER Per: V. Padmanabhan The present appeal is against the order in Original No.23/2014 dated 24/07/2014. 2. The impugned order has been challenged by Sh. Jatin Arora, partner, against the penalties levied on him amounting to rupees 70 lakh as well as rupees 20 lakh under various sections of the Customs Act. It is pertinent to record that no appeals are before us from the main unit i.e. M/s Global Partners (India) against whom duty demands have been raised and penalties imposed. No appeals have also been filed by any of the others on whom penalties have been imposed in the impugned order. 3. The brief facts of the case are that M/s. Global Partners (India) is a unit licensed in the NOIDA Special Economic Zone (NSEZ). They have been given permission for trading in readymade garments and accessories for garment industries such as buttons, tapes, labels, chatons, needl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Authorities which ultimately led to the conclusion as follows: i) Goods viz. chatons and machine sewing needles procured by M/s. Global Partners (India), Noida without payment of duty for trading were clandestinely diverted from NOIDA SEZ to domestic tariff area without payment of customs duty. ii) M/s. Global Partners (India), Noida transferred hand sewing needles to M/s. Aparna Fashions, SEZ, Noida without seeking permission and without accounting the details in the books of accounts. iii) M/s. Global Partners (India), Noida brought within the limits of SEZ, old and rejected glass beads and needles with a view to substitute the imported goods which were diverted without payment of duty. 4. After issue of show cause notice, the adjudicating authority vide the impugned order, ordered confiscation of the old and rejected glass pieces found in the premises of M/s. Global Partners (India), Noida as well as the hand sewing needles found in the premises of M/s Aparna Fashions. Customs duty was demanded from M/s. Global Partners (India), Noida on the total quantum of imported goods which were procured without payment of duty and which were found diverted i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in his individual capacity in addition to being a partner in the partnership firm. From the facts of this case, it is established that Sh. Jatin Arora was instrumental in planning and carrying out the evasion of customs duty by diverting duty-free imported goods into the DTA without payment of customs duty and in violation of SEZ act and rules. 10. We have heard both sides and perused the appeal record. 11. M/s. Global Partners (India), Noida have been permitted to operate in the Noida SEZ for carrying out trading in ready-made garments and accessories. In pursuance of such permission, M/s. Global Partners (India), Noida have imported various goods such as glass beads, chatons, sewing needles etc. The investigations carried out by Customs Department established the fact that M/s. Global Partners (India), Noida had diverted the duty-free imported goods clandestinely without payment of duty. Further, it was noticed during investigation that an attempt was made for substituting the imported goods with old and worthless glass beads and needles so as to cover up such diversion. 12. At the outset we propose to discuss the argument advanced on the ground of jurisdiction. It ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed officer', who was earlier empowered to perform certain jobs under Chapter XA, the power of the Customs authorities under the Customs Act, including the power to confiscate and impose penalty under Sections 111 to 114, as enumerated in Chapter XIV of the Customs Act, is not taken away. 35. Thus, we hold that the competent authorities under the Customs Act are still empowered to confiscate any goods under Sections 111 and 112 and impose penalty under Sections 113 and 114, in appropriate case, even with regard to the units situated within the Special Economic Zone. The competent authorities are also empowered to take penal action under any other Central Act, if such violation is found to have been committed by any or other unit of SEZ including the writ petitioners, with regard to which no notification has been issued either under sub-section (1) or sub-section (2) of Section 21 or sub-section (1) or sub-section (2) of Section 22 of the SEZ Act, 2005. 14. Upon careful consideration of the above judgment of the Hon ble High Court, we observed that the Tribunal s decision appears to have been delivered without considering the above decision. To this extent the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Arora has been summarized as follows by the adjudicating authority in the impugned order: Shri Jatin Arora, Partner, M/s Global Partners (India), the unit is a partnership concern and the entire affairs of the unit are being managed and looked after by Shri Jatin Arora who is himself signing all the records and documents. Thus it is evident that he is solely responsible for the diversion of 3931 kgs of chatons and 7166 kgs of Machine sewing needles imported vide different bills of entry. He has attempted to cover up the shortage and clandestine clearance of 3931 kgs of chatons by substituting the same with 4030.70 kgs of old and rejected glass beads / pieces procured from the domestic market to fulfill its export obligation and similarity he has attempted to cover up the shortage of 7166 kgs of machine sewing needles by substituting the same with hand sewing needles found in the premises of the unit as well as by placing them in the unit of M/s. Aparna Fashion. In his initial statement dated 15.12.2012 he admitted categorically and unequivocally that the shortages noticed during the course of physical verification conducted in the unit and recorded under panchnama dated 15.12 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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