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TMI Blog2002 (9) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... latives and imported 460 nos. of second hand printing machines of different varieties. In his statement, he admitted the fact of floating these units and also selling the machines in the local market. The statements of relatives and family members and friends of R. Janardhanan were also recorded. In all these statements, they had admitted that R. Janardhanan had floated the firms and units and financed for importation and for sale of the goods in the market to different buyers. They stated that they had no knowledge of his activity and they were only name lenders. Therefore, the show cause notice dated 24-11-1998 was issued to all the 23 persons/firms wherein it was proposed, to confiscate 71 numbers of imported second-hand printing machines valued at Rs. 30,92,439/- which were under seizure in terms of Section 111(d) and 111(o) of the Customs Act. The notice proposed that 389 nos. of imported second hand printing machines valued at Rs. 2,93,74,056/- imported and sold in the local market should not be held liable to confiscation under the said provisions of law. The notices also proposed to impose penalty under Section 112(a) of the Customs Act on R. Janardhanan and penalties on ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Offset Printers and 13 machines to M/s. Diana Reprographics. 4. The Chief Commissioner after due consideration noted that 23 companies/firms were opened/floated by R. Janardhanan in which he was either partner/director/manager along with his own relatives and friends. From the statement of proprietor/directors/manager of the firms, it was found that R. Janardhanan had financed, floated these firms and made imports in their names. He had handled the import documents, customs clearances with and through the CHA, and after clearance he sold the goods in the market. It was found that R. Janardhanan had direct control and he was the sole decision making authority. The Chief Commissioner noticed that 389 machines out of 460 machines had been sold and therefore rejected the explanation of R. Janardhanan as without any bona fide and totally illogical ex facie. The Commissioner noted clear violation of the para 5.4 of the EXIM policy and hence found the allegations made out in the show cause notice to have been proved. Hence, he held the 389 machines sold in the market to be liable for confiscation under the said provisions of law. 5. As regards the 71 nos. of second hand printing machi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was also contended that 389 machines were also sold to actual users. It was contended that appellant was under bona fide belief that machines sold to the actual users also would come within the scope of ambit of actual user and thereby there is no violation of the EXIM policy. Likewise, he submitted that 71 machines had been kept in the godown and it had not been sold and hence there cannot be a presumption drawn that they were meant for sale. 7. Ld. DR referred to the order and showed that there was no bona fide belief in the action of the appellant. The appellant had deliberately sold all the goods with business venture. Therefore, there being violation of the EXIM policy, the goods were liable for confiscation and imposition of fine penalty. 8. We have carefully considered the submissions made by both sides and have perused the impugned order. In order to avoid repetition of the facts, it is proper to extract the findings given by the Chief Commissioner in paras 15 to 24 of the order which is extracted herein below :- "15. I have carefully gone through the records of the case and the submissions made, both written and oral. 16. The issues before me for decision are - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand machines cannot be imported but for a valid specific licence in the normal course. It is only against the actual user condition of the policy, the importers are permitted to import second hand printing machines. Otherwise the goods stand to be unauthorized goods. Therefore, I find that in the instant case 389 machines which were imported, cleared conditionally and sold in the market are to be held liable for confiscation under section 111(d) and 111(o) of Customs Act, 1962. I find that the goods have already been sold and not available physically for confiscation. In this case, the cause of action and offence thereof, were subsequent to release of the goods against their own declarations to Customs, with an undertaking to install and use the machines on their own. Such an undertaking is like a bond binding themselves to adhere to the conditional release accorded to them. Sale of goods in the market led to the offence whereby the goods became unauthorized and irregularity established. Therefore, I find that confiscable goods have been sold in the market. Hence, I hold that, in this case, redemption fine is imposable as per the ratio of the judgment of Hon'ble Supreme Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the request. I find that department has discharged enough proof and evidence, both direct and circumstantial to the effect that these machines are only meant for sale. In this regard I find that the ratio of decision of the Hon'ble Supreme Court in the case of Bhoormull v. Collector of Customs [1983 (13) E.L.T. 1546 (S.C.)] is applicable, wherein, the Hon'ble Supreme Court held that the prosecution need not prove each and every link in the chain of events, that it is sufficient enough if it has discharged even direct and circumstantial evidence sufficient enough to raise a presumption in its favour, of a fact sought to be proved. Therefore I find that the 71 machines are liable for confiscation under 111(d) and 111(o) of the Customs Act, 1962. 20. Shri R. Janardhanan is the kingpin in the whole case. It was he who floated different firms/companies wherein he is either Partner/Manager/ Director along with his relatives, family members and friends. From the statements of different persons, which are on record, I find that all of them have only lent their names and that it was Shri R. Janardhanan who organized, negotiated, imported and handled the Customs documents and after clearan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd sale of the same in the local market. Ignorance of law is not ignorable, and to this extent by their acts of omissions to inform the Customs Authorities, they rendered the goods liable to confiscation under Section 111(d) and 111(o) of the Customs Act, 1962. Therefore they are liable to penalty under Section 112(a) of the Customs Act, 1962. 23. Notice also proposed penalty under Section 112(b) of the Customs Act, 1962 on Shri G. Srinivasan of M/s. Arrow Shipping and the notice alleged that he has conspired with Shri R. Janardhanan in importing and selling second hand printing machines, in violation of the policy, and received documents in the names of other firms from Shri R. Janardhanan, delivered the imported machines directly to Shri R. Janardhanan. From the notice I find that the copy of the notice was not issued/endorsed to Shri G. Srinivasan of M/s. Arrow Shipping, the CHA. Therefore I am unable to proceed against him. 24. Having regard to my findings above, I pass the following order." 9. On a careful consideration of the findings, we notice that the Chief Commissioner has taken into consideration all the statements of the persons involved. There is categorical admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 at p. 774. In the case of Mangala Textiles v. CCE, Rajkot, 2001 (130) E.L.T. 705 (T), the Tribunal held that redemption fine is imposable even when goods are no longer in the custody of the department, when the goods have become liable for confiscation. In view of these judgments, we have to clearly hold that the order of confiscation and to grant redemption on payment of a fine in respect of 389 nos. of second hand printing machines is a correct order and requires to be upheld. This view is supported by the judgment rendered by the Apex Court in the case of Western Components Ltd. v. CC, New Delhi, 2000 (115) E.L.T. 278 wherein the Apex Court upheld the goods which had been confiscated and released on payment of fine, especially in cases where the goods had been released on execution of a bond and such goods are not produced and or not found. The Apex Court held that the fine imposed is proper. 10. In so far as the confiscation order pertaining to 71 machines is concerned, ld. Chief Commissioner has taken all the evidence on record to show that the goods had not been installed in the appellant's premises and had also been shifted to various places. The chain of circumstances c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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