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TMI Blog2018 (12) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... stified in holding the penalty of Rs. 5 Lacs imposed by the respondent vide the order-in-original No. 09A/2010/CAC/CC/RBT dated 29.1.2010?" The above question arises in following background: The appellant - assessee is a Chartered Accountant. The Custom Authorities found that one M/s. Spectrum Fabrics had made import of polyester fabrics without payment of duty under the Duty Exemption Entitlement Certificate ("DEEC" for short) under advance licenses and the goods so imported were illegally diverted to the local market instead of utilizing the same for production and export of goods. A show cause notice was issued on the said importer in December, 2006. The appellant herein was one of the conoticee. Allegations against him contained in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ins that in the case of M.M. Raikhana, it was held by the Hon'ble Tribunal that penalty on a person is not sustainable in the wake of no evidence produced to show that the advance licence would not be used in the manufacture of export goods. The ratio of this case is not applicable in the present case because herein there is an 'admitted' evidence of Shri. Mahesh Patel that he had not verified the documents before giving the export performance certificates. Thus, the allegation of 'no evidence' by the noticee doesn't survive. I also find that the rest of the cases are either not relevant to the subject case or deals with cases wherein there is penalty and confiscation ordered in cases of lack of evidence against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of balance sheet which was not signed by the Chartered Accountant. Therefore, he was not supposed to issue any certificate which is not based on the audit of books of accounts. Accordingly, on the basis of the certificate issued by the Chartered Accountant, Shri. Mahesh P. Patel, M/s. Spectrum Fabrics obtained the advance licence fraudulently which resulted in huge revenue loss of Rs. 1.46 Crores customs duty to the Government exchequer. As per the role described by the adjudicating authority, it is clear that the appellant Shri. Mahesh P. Patel was knowingly involved in facilitating M/s. Spectrum Fabrics for entire fraud. Therefore, we do not see any reason to take any lenient view. Hence, the penalty of Rs. 5 Lacs imposed on Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout full verification. 6. In the final order of the adjudication also, the Commissioner came to confirm the allegations made in the show cause notice without traveling beyond them, which any case, he could not have. He referred to the assessee's statement recorded under Section 108 of the Act and concluded that the arguments advanced on behalf of the assessee were in the nature of retraction of the statement which the assessee had never retracted earlier. The Commissioner held that the assessee had certified that he (the assessee) had verified the books of accounts which in fact he had not done. 7. Since the Commissioner had made a reference to the assessee's statement under Section 108 of the Act, we have also perused such a sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as confirmed penalty under Section 112(a) of the Act which envisages imposition of penalty on any person who in relation to any goods does or omits to do any act which act or omission would render such goods liable to confiscation under Section 111 or abates the doing or omission of such act. While ordering confiscation of the goods by the said order imposing penalty on the appellant, the Commissioner has relied on clause (o) of Section 111 of the Act. This clause makes goods brought from a place outside India liable to confiscation if the goods are exempted, subject to any condition from duty or any prohibition in respect of the imports and in respect of which the condition is not observed which non-observance is without sanction of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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