9911796707
TMI Blog2018 (2) TMI 1425X X X X Extracts X X X X X X X X Extracts X X X X ..... Some of these documents, originally promised to be supplied, were not provided. This was also recorded by the original authority. All these will reveal that the appellant cannot be considered as a lower level employee executing the directions of responsible senior person of the company - If the appellant is not a responsible person directly connected to the present dispute, it is not clear as to why he is coordinating the action with the CHA and deposed before the customs authorities in the follow up investigations also. In other words, an un-connected employee of a company, as claimed by the appellant, has no business in these activities. The goods were lying un-cleared, as claimed by the appellant, with customs department, duty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 72,86,723/- has been paid on such imported goods. Due to some dispute with BSNL, the imported goods could not be used in India. The importer filed shipping bills on 08.11.2006 for re-export of the said consignment under Section 74 of the Customs Act, 1962. In February, 2007, the officers of DRI initiated certain enquiry with reference to the said impugned goods. It was revealed that the goods were sought to be re-exported under two shipping bills dated 08.11.2006. Originally, the goods were sought to be re-exported to M/s Atlas Opportunities Ltd, Slovakia. Later, the same was changed to re-export to original supplier i.e. M/s ZTE Corporation, China. The existence of M/s Atlas Opportunities Ltd, Slovakia was not established with any supporti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the authorities in the company and had not gained personally anything out of these transactions. The appellant is no more a Director of the company. During the pendency of this appeal, the company was struck-off the record of Registrar of Companies and it is no longer existing. Further, the penalty imposed was under Section 114 AA which was introduced in the year 2006. For the act prior to 2006, this provision will have no application. Case laws were relied upon in support of this assertion. 3. The ld AR strongly contested the grounds of appeal. He submitted that it is not a simple case of import and re-export. The background of the case, as discussed in the impugned order and further development, before the Hon ble Delhi High Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that the transaction starting from the import of the consignment and upto the issue of impugned order cannot be considered as a bonafide business transaction. The various unanswered critical points clearly give an impression that the importing company has not revealed all the relevant facts with supporting evidence which will necessarily lead to adverse inference. This much has also been recorded by the Hon ble Delhi High Court while dealing with interim prayers by the company. Considering the role of a present appellant, we note that he cannot be equatted to be a simple paid employee, doing day today activity for the company, as directed by a much higher authorities. 6. In other words, it is clear that the appellant is in a responsibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imself, will show the origin of the dispute had arisen from the date of import in December, 2004; the attempted export and various connected issues continued thereafter as could be seen from the dates of filing earlier shipping bills and revised shipping bills. In fact, as admitted by the appellant himself, latest set export order was given in January, 2007 also. As such, we find no merit in the objection raised by the appellant on this issue. 8. Considering that the goods were lying un-cleared, as claimed by the appellant, with customs department, duty of ₹ 5.61 crores, have been duly discharged and appropriated to the Government; a penalty of ₹ 5 crores has been imposed on the importer/re-exporter under Section 114 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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