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TMI Blog2002 (3) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of the Act of Rs. 5.00 lakhs on Choice Laboratories, Rs. 1.00 lakh on Fresh Laboratories, Rs. 1.00 lakh on Ratilal Hemraj and of Rs. 15.00 lakhs on Yogesh Korani. 2. We have heard the arguments of the counsels for the appellants and the departmental representative. 3. So far as Choice Laboratories is concerned, the advocate for this appellant has produced a certificate dated 19-9-1999 issued by the appropriate authority showing full and final settlement of its dues under the Kar Vivad Samadhan Scheme, 1998. Accordingly, the appeal of Choice Laboratories is dismissed as withdrawn. 4. We now turn to the appeal of Ratilal Hemraj. The Collector finds that this appellant imported, contrary to law, 2.2 tons of clove bud oil valued at Rs. 7.27 lakhs approx. and wrongly cleared free of duty under Notification 159/90. He has therefore ordered recovery of duty payable on goods of Rs. 7.34 lakhs after adjusting the cash deposit of Rs. 7.34 lakhs which was already made and recovery of Rs. 1.00 lakh towards fine in lieu of confiscation [ordered under clause (o) of Section 111 of the Act] in terms of the bond executed by Ratilal Hemraj. 5. The Collector finds that this appellant purchased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 8. The basis, upon which the Collector concludes that the licences were sold, is the statements of parties. In his statement of 23-8-1993, Ashwin Patel, the partner of Choice Laboratories has said that one of the licenses. No. 3400533 was to expire on 30-6-1993. They were unable to complete the export following the break up of USSR and it therefore decided to sell the licence at a premium of 25%. In his further statement, he had indicated how Yogesh Korani was authorised to import and clear the goods flavouring compound in the name of their firm. He had repeated in his another statement. Yogesh Korani, in his statement of 18-10-1993, has confirmed the purchase by him of this licence at 25% premium, and said that he in turn sold the licence to Ratilal Hemraj for import of 2.22 kg of clove bud oil. He said that he also imported and cleared under that licence, two consignments of peppermint oil, wherein two tons approximately. He had stated that he had imported this consignment originally in the name of Fresh Laboratories but latter on receiving the offer to sell of the licence from Choice Laboratories, he arranged a contract of high seas purchase in the name of Choice Laboratories ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Yogesh Korani. It is he who approached Ratilal Hemraj representing to him that Choice Laboratories has an advance licence for import of the clove bud oil. Ashwin Patel, a partner of Choice Laboratories, in his statement dated 23-8-1993, has said that the licence 3400533, dated 18-3-1991 was to expire on 30-6-1993. As the firm was not in a position to secure export orders due to break up of the U.S.S.R, it decided to sell the licence in respect of flavouring compound and remaining quantity of glycerine. Accordingly, it sold the advance licence at a premium of 25% to Yogesh Korani. He said in his further statement of 25-8-1993 that Yogesh Korani was authorised to import the goods in the name of his firm i.e. Choice Laboratories. Obviously both the licences could be made use. He said that he was not aware that Yogesh Korani has already effected import and clearance of any material under the licence. After being shown debit in the licence and the DEEC book, he confirmed that the consignment of clove bud oil shown therein were the one which had been arranged to be imported by Yogesh Korani. It is to be noted that at no point, did he refer to any arrangement with Ratilal Hemraj. Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y were originally imported in the name of our firm and would clear the same on payment of appropriate amount of duty but however in the meantime, Yogesh Korani of Mahavir Exports and Imports approached us and convinced that he will be in a position to clear the said goods under the DEEC book taking a premium of 30% equivalent to CIF value. Since the licence's validity was very short, we thought the percentage of equivalent premium to be fair and we made a payment of Rs. 2.00 lakhs against the said consignment to Mahavir Exports and Import Company and he agreed to deliver the said goods after clearance at our door steps." It is also significant that the provisional release of the clove bud oil was made to Ratilal Hemraj. 12. From these facts, it is clear to us that the goods were imported by Ratilal Hemraj, and cleared by it through Customs utilising the licence of Choice Laboratories. The claim that the real importer is Choice Laboratories and that only Ratilal Hemraj only figure before and after importation is rebutted by the stand of the parties. It is not contended before us that these various statements were obtained under unlawful means and their admissions should be disregar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... madhan Scheme, the benefit would also be available to him. The judgment of the Kerala High Court in Tom. K. Thomas v. Union of India & Others in support is cited. If Yogesh Korani became liable to penalty as a result of involvement of Choice Laboratories, his claim would have to be accepted. However, it is clear from the evidence that we have cited, Yogesh Korani not only arranged for sale of the licence, he was also concerned with the importation of the goods under the licence which he knew that was not permitted, and subsequently dealt with the goods. It is he who dealt with the Custom House and took active role in dealing between the parties. His role therefore continued even after the role of Choice Laboratories stopped. Therefore, the benefit of the Kerala High Court's judgment will not be available to him. Considering the active participation, we do not find any ground for leniency. 16. So far as Fresh Laboratories is concerned, the Commissioner's order is contradictory. He has imposed a penalty of Rs. 1.00 lakh on it "considering that they had not imported any goods nor has their import licence been utilised". In that event, why he could legally impose a penalty at all beco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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