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TMI Blog2009 (7) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... t parties under the "actual user" condition prescribed in the Import policy during the relevant period. However, having so imported such second-hand printing machines, they used to sell to different parties in violation of the said conditions and the import policy. Similarly, they had imported 16 multilith single colour second-hand printing machines from M/s. CJB Printing and Equipment, U.K. in the name of M/s. Classic Pack, a proprietorship concern of one Shailesh Mehta, vide Bill of Entry No. 1588 dated 15.11.1997. However, all those machines were offloaded in the premises of Baban Sharma at 51A, Pragati Industrial Estate, N.M.Joshi Marg, Lower Parel, Mumbai. Later on, during a raid 11 of those 16 printing machines were found to hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that amount. Statement of Shailesh Mehta revealed that the present appellant and Baban Sharma had paid him Rs.5 lac in cash for payment of the customs duty and clearance charges on import of 16 second-hand printing machines. They had also obtained his signatures on several documents for clearance of goods. After clearance of goods, the present appellant and Baban Sharma took possession of machinery and paid an amount of Rs.1 lac to Shailesh Mehta as commission. Machinery was offloaded at the premises of Baban Sharma at Pragati Industrial Estate. Later on, 11 of the printing machines ,which were imported in the name of M/s. Classic Pack, were found stored in the premises of Fayyaz Binding Works. Statement of Baban Sharma under Section 108 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that the second-hand printing machines could be freely imported. There was no prohibition on their import nor any exemption of duty was sought on the same and, therefore, there could not be any violation of Section 111(o) of the Customs Act, 1962 by anybody. According to him, if there was no violation of Section 111(o), penalty could not be imposed under Section 112. Infact, in the present appeal, no ground is taken that this point was pressed before the Appellate Tribunal. Even though in the appeal filed before the Appellate Authority, a ground was taken that the provisions of Section 112(a) and (b) are not attracted and there could not be any violation of "actual user condition" by him. It appears that this point was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gn Trade Act' in brief), the Central Government may make provisions for the development and regulation of foreign trade by facilitating import and increasing exports and can also make provisions for prohibiting, restricting or otherwise regulating the import or export of goods, and all goods to which any Order under sub-section (2) applies shall be deemed to be goods the import or export of which has been prohibited under Section 11 of the Customs Act, 1962 and all the provisions of that Act shall have effect accordingly. Under Section 5, the Central Government may, from time to time, formulate and announce by notification in the Official Gazette, the export and import policy and may also, in the like manner, amend that policy. Admittedly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the name and in favour of the M/s.Classic Pack, which was proprietorship concern of Shailesh Mehta. However, the material collected during the investigation clearly revealed that none of those machines were actually received by M/s. Classic Pack and all of them were offloaded initially at the premises of Baban Sharma and later on, 11 of those machines were found in the premises of Fayyaz Binding Works of Mohammed Illyas Qureshi. Remaining 5 machines out of that lot of 16 printing machines could not be located. It shows that those 5 printing machines were disposed off or transferred illegally. Thus, in the present case, this condition of actual user and the condition of non-transfer of the machinery within five years from the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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