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TMI Blog2024 (11) TMI 1144X X X X Extracts X X X X X X X X Extracts X X X X ..... Bond. There is no finding in the impugned order about the role played by the appellants in the alleged offence. It is observed that penalty has been imposed on them only on the ground that their company had acquired 51% of shares in the company viz. M/s. SUPL and they were appointed as Directors in M/s. SUPL. Thus, the imposition of penalty on the appellants is not sustainable when separate proceedings have already been initiated against the company M/s. SUPL for the duty free import of Clinker under Advance Authorization and for the non fulfilment of export obligation. Thus, we hold that penalty imposed on the appellants are not sustainable. Penalty of Rs.20,00,000/- each has been imposed on both the appellants under Section 112 (a) (b) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant no. 2 ) has filed Customs Appeal 75527 of 2021 against imposition of the penalty of Rs.20,00,000/- on him, under Section 112 (a) (b) of the Customs Act, 1962 vide Order-In-Original No. KOL/CUS/PR COMMR /PORT/09/2021 Dated 18.02.2021 issued by the Principal Commissioner of Customs (Port), Kolkata, for alleged non-fulfilment of export obligation in respect of import of Clinker made by one M/s. Swati Udyog Private Ltd. under Advance Authorization issued by DGFT. 2. As both the appeals emanate from the same Order-in-Original, for the same offence, both are taken up together for decision by a common order. 3. Both the appellants submit that the Show Cause Notice had been issued for (i) alleged violation of the provisions of Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants submit in this regard that the company failed to make export of cement due to various business problems, though it manufactured 43839 MTs cement in their factory from June 2012 to May 2013 out of the imported clinker and sold in domestic market on payment of Central Excise Duty; for the failure to fulfil the export obligation, DGFT imposed a fine of Rs.50 Lakhs by passing an adjudication order dated 20.03.2018 and directed to make payment of the Customs Duty with interest. It is stated that thereafter, a Demand-cum-Bond Enforcement Notice dated 21.03.2018 was issued to the importer M/s. SUPL by the Proper Officer of Customs, Haldia Port; but, the appellants were served with the Notice to Show Cause dated 30.03.2019 issued by the Addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Global Ltd. placed an order for 20000 MTs Clinker to an overseas seller M/s. Rainbow Vietnam Joint Stock Company at the request of Shri Amit Kejriwal, the promoter of M/s SUPL; that the said consignment was sold as such to M/s. Swati Udyog Pvt. Ltd. on High Sea Sale basis and its clearance from Customs, transportation from Haldia port to the SUPL factory in Jharkhand and utilization thereafter was handled by the company, SUPL. Thus, the appellants submit that under the facts and circumstances of this case, they have no role in the duty free import of Clinker under Advance Authorization and non-fulfilment of export obligation. 3.4. It is also submitted by the appellants that the import of the consignment was allowed by the Proper Officer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any meeting conducted by the Board of Directors and they never interfered in any decision of the company SUPL. We also observe that there is no finding in the impugned order about the role played by the appellants in the alleged offence. We observe that penalty has been imposed on them because they have acquired 51% of shares in the company SUPL and appointed as Directors. 6.1. We find that the import of the consignment was allowed by the Proper Officer of Customs by assessing the Bill of Entry provisionally after obtaining Bond to his satisfaction. The condition of the bond was that in case of failure to fulfil the export obligation, it would be enforced. It is a fact on record that the Proper Officer of Customs initiated the required p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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