2009 (3) TMI 111

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... o duty can be demanded from the appellant in view of the fact that they had procured the goods from the foreign origin from open market without any bill and therefore cannot be treated as importer for the purpose of demand customs duty u/s 28 – since the goods are liable to confiscation – penalty upheld but reduced.
Shri B.S.V. Murthy, Member (T) Shri Mukund Chauhan, C.A., for the Appellant. Ms. M.I.J. Micheal, Jt. CDR, for the Respondent. [Order].- The facts of the case in brief are that the appellant-unit were a manufacturer of Polyester Texturised Yarn/Twisted Yarn/Crape Yarn failing under Chapter 54 of the Central Excise Tariff Act, 1985. A team of Central Excise Officers visited the factory premises of appellant-unit and carried .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ct of confiscated goods. 2. Shri Mukund Chauhan, learned Chartered Accountant on behalf of the appellant submitted that confiscation has been confirmed under Section 111(j) of Customs Act, 1962, which is not at all invoked in show cause notice and therefore, the same has to be set aside. He also submits that there was no concealment of the goods in the factory and they were kept in the open. He cited decision of the Tribunal in the case of Sagar Texo Fab. [2008 (223) E.L.T. 667 (Tri.-Ahmd.)] in support of his contention that no duty can be demanded from the appellant in view of the fact that they had procured the goods from the foreign origin from open market without any bill and therefore cannot be treated as importer for the purposes of .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... ion 111(j) provides confiscation of any dutiable or prohibited goods removed or at tempted to be removed from the Customs area or a warehouse without permission of the proper officer or contrary to the terms of such permission. Therefore, confiscation has to be upheld. As regards duty demand, I find, decision of this Tribunal in the case of Sagar Texo Fab applies to this case and therefore duty cannot be demanded from the appellant. Accordingly, the demand for duty and interest thereon has to be set aside. As regards penalty, since both the appellants have dealt with the goods which are liable to confiscation, penalty under Section 112(a) and 112(b) has been rightly imposed and therefore do not require any interference. However, having rega .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X