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TMI Blog2022 (12) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... sper about any suppression or misstatement or abatement on the part of the appellant. No role has been assigned or alleged against the appellant there in the Show-cause notice. He has been penalized merely because he was the Director of the company during the relevant period. But both the authorities below have overlooked one fact that in his resignation letter dated 28.11.2008 while resigning from the post of country head, the appellant has specifically mentioned therein that he would not take any decisions after 30.11.2008 which in other words means that after that date he would not participate actively in any manner in the affairs of the company. Had the resignation been not there, still the department has failed to bring out any evidence on record suggesting any active role of the appellant in that single import/bill of entry in issue. It has not been established anywhere that the appellant is the beneficiary or has gained anything out of the import. The orders merely proceed on speculations as it uses the terms like the appellant must have experience or must have been aware . No penalty or conviction can be based merely on speculations. There has to be some role assigned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udded gold jewellery from Thailand and cleared the same through Precious Cargo Customs Clearance Centre (PCCCC), Mumbai by availing the duty exemption benefit of the Notification No.85/2004-Cus. dated 31.08.2004 and consequent evasion of Custom Duty amounting to Rs.26,12,902/- which culminated into issuance of a Show Cause Notice dated 20.05.2014 to the importer i.e. the Company and its four (4) Directors including the Appellant herein and subsequently Adjudicated vide Order-in-Original No. ADC/DG/AP-SC/08/2014-15 dated 31.03.2015. The Adjudicating Authority denied the duty exemption benefit and confirmed the differential duty of Rs.26,12,902/- with interest and imposed a penalty of Rs.26,12,902/- along with interest under Section 114A on M/s Damasy Retail Jewellery Pvt. Ltd. and penalty of Rs.16,00,000/- under Section 114AA, 112(a) 112(b) on Shri Mohammed Irfan Abdul K. Munshi i.e. the Appellant herein being one of the Directors of M/s. Damasy Retail at the time of filing of Bill of Entry dated 23.03.2009 and so far as other Directors are concerned proceedings against them was dropped. On appeal filed by the Appellant, the learned Commissioner upheld the penalty but its quantum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd CC(Preventive), Mumbai vs. Ramesh A. Bachani Ors.; 2000 (93) ECR 375 (Tribunal). According to learned counsel conscious knowledge was also not proved by the department anywhere. One more submission was raised by learned counsel about inordinate delay in passing the order by the 1st Appellate Authority i.e. the Commissioner (Appeals). According to him, learned Commissioner concluded the hearing on 11.1.2018 but the impugned order was passed much belatedly on 29.3.2019 which, according to learned counsel, is against the mandate of expeditious disposal as per by Circular No. 732/48/2003-CX dated 5.8.2003 and also Section 128(4A) of the Customs Act, 1962. Per contra learned Authorised Representative appearing for Revenue submitted that the Bill of entry in issue is of dated 23.3.2009, which is well during the tenure of the appellant in the company and in the said consignment the value addition was ascertained at 16.15% as against declared 22%, therefore it s a clear case of misdeclaration for which the importer and the appellant, as Director, of the said firm was held responsible and rightly penalized. Learned Authorised Representative stressed on the point that the appellant was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own admission in his statement. The import of the said 7 impugned consignments of studded gold jewellery was started from 23.03.2009. During this period Shri Mohammed Irfan Abul karim Munshi was the Director and head of India operation of M/s Damasy Retail Jewellery Pvt. Ltd, Mumbai. Being head of the operation of India, he must have experience in the field of studded gold jewellery and he must have been aware of the condition of mimimum local value addition of 20% for the purpose of exemption from Custom Duty on the import of jewellery under FTA from Thailand. Hence, I conclude that, Shri Mohammed Irfan Abul karim Munshi was fully aware that in case of B/E no. 100617 dated 23.03.09 local value addition was 16.15 as elaborated at para 1.12 above and that the value addition of more than 20% had not been achieved but deliberately suppressed this fact and thus unduly claimed the exemption under Notification No. 85/2004 and exploited the Interim Rules of Origin issued vide Notification No. 101/2004 and instead of paying merit rate of duty of Rs.15,91,626/- just paid Rs.152997/- unduly claiming the benefit under the above said notification. Hence he is liable to penalty under section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve in his submissions although that has not been invoked by any of the authorities below. The said section 140 covers the sections contained in Chapter XVI which consists of sections 132 to 140A. As per learned counsel in a way section 135(1)(b) which falls in that chapter, covers the cases falling u/s.112(b) and since the impugned order is bereft of any reasoning and/or finding qua knowledge and/or illegal gain to the Appellant from the one bill of entry in issue, therefore the penalty is liable to be set aside. 6. Generally a private limited company consists of Managing Director, Directors and other officers who have been appointed or authorised to act for and on behalf of the company and therefore the question arises how the department has chosen only the appellant for one single bill of entry of 23.3.2009 without assigning any role to him and without mentioning anywhere or without recording anywhere that the appellant was the only person concerned at the relevant time for the imports and for giving/submitting documents to the customs or other authorities for any import without the involvement of any officer or Director or Managing Director, if any, of the company. What about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the relevant provisions, the penalty imposed on the appellant is liable to be set aside. In this regard reliance is placed on the following paragraph from the Tribunal s Order No.A/798 799/WZB/Ah bad/07 dated 13.4.2007 in the matter of Gujrat Apar Polymers, which discusses the law on this issue: 3. After considering the submissions made by both sides and after having gone through the various relied upon judgments, I find that Tribunal in case of Singam Mark Co. v. CCE Salem as reported in 2005 (189) E.L.T. 111 (Tri.-Chennai), has held that composite penalty under two different provisions of law can not be accepted without the requisite split up. Similarly, in case of Avdel (India) Private Ltd v CCE Mumbai reported in 2004 (171) E.L.T. 201 (Tri-Mumbai), Tribunal set aside the personal penalty on the ground that a composite penalty under Section 11AC and Rule 173Q is not permissible. In case of Lauls Ltd. v CCE, New Delhi reported in 2003 (158) E.L.T. 711 (Tri.-Del.), it was observed that in case of composite penalty, it cannot be made out as to which part is imposed under section 11AC and what amount is under rule 173Q. The Tribunal further observed that apportion of pena ..... X X X X Extracts X X X X X X X X Extracts X X X X
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