9911796707
TMI Blog2018 (2) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... . Appellant herein is located at Bengaluru International Airport, Alpha3, Airline Building, 1st Floor, Devanahalli, Bangaluru. They had been granted a licence to operate a Private Bonded Warehouse to operate duty-free-shop having license for the sale to international passengers arriving at and departing from Hyderabad Airport also. Investigation carried out revealed discrepancies in the nature of shortages as well as excess quantities of various types of imported liquor bottles and electrical items. It was concluded that the employees of the appellant had illicitly removed bonded goods from the warehouse without payment of duty. Show Cause Notice was issued demanding duty and also sought to impose penalties. Adjudicating authority confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 1st Appellate Authority, in order-in-appeal upheld the same penalty for same violation, hence double penalty on the same violation merits to be set aside. It is the further submission that having held that the employees of the appellant were involved / engaged in illicit clearance, the 1st Appellate Authority as well as adjudicating authority were wrong in law, for holding the appellant responsible for imposing penalty for such violation. 7. Ld. Departmental representative reiterates findings of lower authorities. 8. On careful consideration of the submission, I find that the facts are not disputed. The entire issue is regarding demand of the duty on goods found short in the duty free shop of the appellant, in pursuance to the shop ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 22.09.2010 i.e., the date of possible payment of duty and the closure of the bonded warehouse cannot be a burden of the adjudicating authority. There is no record at all presented by the appellant throughout the proceedings at the original stage or in these proceedings to suggest that even remotely such a possibility exists. In the absence of the appellant making out a prima facie case in support of their case for payment of duty, it cannot be said that the original authority was bound to verify their claim. Therefore, the plea of the appellant in this regard of having paid duty possibly remains a presumption not based on any facts. Therefore, I would consider that even at this stage failure of the appellant to produce any evidence except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the absence of documentary evidence which would implicate them in the offence committed; that the penalty imposed is unjustified and that the amount of penalty imposed is harsh. I have considered the relevant case laws upon which the appellant has sought reliance. In this regard, I find that the original authority has examined the detailed evidences relating to the offences committed which established a charge against the appellant that they had the colluded in the commission of offence. The appellant has fairly conceded that the employees have conducted irregularly in the act of removal of bonded goods which were given in trust for the custody of the appellant by government. The Department had licensed the appellant under Section 57 on p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er law as provided in Section 112 of the Customs Act, 1962. In the facts of the case, it has to be held that the employer has been irresponsible for ensuring proper conduct by employees and employer has been irresponsible for ensuring proper conduct by employees and cannot absolve himself of the liability. The original order has clearly spelt out that 332 liquor bottles valued at Rs. 5,17,531/- had been found short during stock verification and that the conduct of the licensee has been in express violation of the Section 72 (d) read with Sections 62 and 68 of the Customs Act whereby the goods clandestinely removed by them were liable to confiscation under Section 111(j) of the Act, 62. In view of the commission of offence as above, it is ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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