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TMI Blog2023 (2) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... disposed off. - Customs Appeal No. 85579 of 2020 - A/85135/2023 - Dated:- 1-2-2023 - HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri Anil Balani with Ms. Riya Gupta, Advocates, for the Appellant Shri S.K. Hatangadi, Assistant Commissioner, Authorised Representative for the Respondent ORDER This appeal is directed against Order-in-Appeal No. 09 to 14(CAC)/2020(JNCH)/Appeal-I dated 06.02.2020 passed by the Commissioner of Customs (Appeals), Mumbai-II, Nhava Sheva. By the impugned order, Commissioner (Appeals) has held as follows:- 17. in view of the above discussions. I uphold the Order-in- Original No. 1175/2018-19/JC/NS- CAC dated 12.03.2019 passed by the Joint Commissioner of Customs, NS-11, JNCH, Nhava Sheva as far as the same is concerned with the appellants M/s Aditya Investment Exim Trade Co.. Veeaar Fabware Pvt. Ltd., M/s Vedant Trade Impex Pvt. Ltd., M/s Simplex Fabware Pvt. Ltd. M/s Vihaan Infin and Exim Pvt. Ltd. and Shri Suryabhan Eknath Dhurpate, Proprietor of M/s Sanket Overseas. Accordingly. 6 Appeal No (s) 30/2019, 31/2019, 33/2019 to 35/2019 and 28/2019 filed by M's Aditya Investment Exim Trade Co., M/s Veeaar Fabware Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -8.1 of the SCN, should not be demanded and recovered from them under Section 28 AAA of the Customs Act, 1952 along with interest in terms of Section 28AA of the Customs Act, 1962. (iii) The amount as mentioned in Column-5 of above Table paid by them under TR-6 Challan as mentioned in Column-6 of above Table should not be appropriated towards duty liability as in (i) above. (iv) Penalty should not be imposed on them under Section 114(ii) of the Customs Act, 1962. 23. Shri Ramesh Singh, Proprietor of M/s Aditya Investment and Exim Trade Co., and director of M/s Veeaar Fabware Pvt. Ltd., M/s Vihaan Infin Exim Pvt. Ltd., M/s Vedant Trade Impex Pvt. Ltd. and M/s Simplex Fabware Pvt. Ltd., having office at 607, 6th Floor, Filix Commercial Complex, Opp. Asian Paints, L.B.S. Marg, Bhandup (W), Mumbai-78 was also called upon to show cause in writing to the Additional Commissioner of Customs, Nhava Sheva- 11[earlier Customs (Exports)), Jawaharlal Nehru Customs House, Nhava Sheva, Tai- Uran, Dist: Raigad, Maharashtra: 400707, as to why: (i) Penalty should not be imposed on him under Section 114(iii) and Section 114AA of the Customs Act, 1962 separately for his indiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Pvt. Ltd., M/s Vedant Trade Impex Pvt. Ltd. and M/s Simplex Fabware Pvt. Ltd.under TR-8 Challan as mentioned in Column-6 of above Table of para 21 towards duty liability as in (1) above. (iv) I impose a Penalty of Rs.21.19,004/- (Rupees Twenty One Lakh Nineteen Thousand Four Only) on M/s Aditya Investment and Exim Trade Co., Rs. 16,75,956/- (Rupees Sixteen Lakh Seventy Five Thousand Nine Hundred Fifty Five Only) on M/s Veeaar Fabware Pvt. Ltd.. Rs. 7,88,443/- (Rupees Seven Lakh Eighty Eight Thousand Four Hundred Forty Three Only) on M/s Vihaan Infin Exim Pvt. Ltd., Rs. 3,95,623/- (Three Lakh Ninety Five Thousand Six Hundred Twenty Three Only) on M/s Vedant Trade Impex Pvt. Ltd. and Rs. 1,82,845/- (Rupees One Lakh Eighty Two Thousand Eight Hundred Forty Five Only) on M/s Simplex Fabware Pvt. Ltd. respectively under Section 114(ii) of the Customs Act, 1962. (v) I impose a Penalty of Rs. 25,00,000/- (Rupees Twenty Five Lakh Only) on Shri Ramesh Singh, Proprietor of M/s Aditya Investment and Exim Trade Co., and director of M/s Veoaar Fabware Pvt. Ltd., M/s Vihaan Infin Exim Pvt. Ltd., M/s Vedant Trade Impex Pvt. Ltd. and M/s Simplex Fabware Pvt. Ltd, under Section 114(). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reason to believe that the same were liable to confiscation under the provisions of section 113 (1) of the Customs Act, 1962. All the above acts of omission and commission on his part have rendered him liable to penalty under Section 114() and 114AA of the Customs Act, 1962. 3.3 For upholding the penalty imposed, Commissioner (Appeals) has observed as follows:- 16.1 The appellant Shri Suresh Matre has filed appeal by contending that the appellant did not commit any act which rendered the goods liable for confiscation under Section 113 of the Customs Act. If the goods are exported to a destination different from the one indicated in the documents, it does not make the goods liable for confiscation under Section 113 of the Customs Act. In this regard, as discussed in hereinabove the benefit Special Focus Market Scheme is applicable to export the goods to notified countries and the goods where they were diverted are not notified in Special Focus Market Scheme and thus country of export was misdeclared in the S/Bs and thereby exporters fraudulently availed the benefits under Special Focus Market Scheme (SFMS) Therefore, invocation of Section 113(1) is justifiable. From the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the payment of Rs.51,42,866/- towards the total demand of Rs.51,61,870/- as he needed some more time to approach the Settlement Commission to pay the remaining amount. Thus the penalty imposed on the appellant is excessive. 3.5 The facts in the present case are identical to the case of the appellant settled by the Settlement Commission in a similar matter on the role of the applicant. The Bench observed as follows:- 7.2 Bench notes that co-applicant prepared document and was aware that these goods were not to be exported to countries declared in the export documents. They issued fake/bogus landing certificates, House BLs/Multimodal transport documents. Therefore they have abetted main applicant to avail undue benefits in the form of SFMS which led to huge evasion of duty. As much co-applicant has rendered himself liable to penal action as proposed in the SCN. 7.3 However, taking note of the fact that they have extended cooperation to revenue and main applicant has paid entire duty, interest penalty, Bench finds it a fit case to be settled by granting partial immunity from penalty to co-applicant. 3.6 The Commissioner (Appeals) in para 16.2 of the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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