9911796707
TMI Blog2003 (5) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of investigations, the Directorate of Revenue Intelligence (DRI) had alleged, inter alia, that Shri Vora had imported the goods in the name of M/s. Mascot Metal Traders (who allegedly, did not qualify to be Actual User for claiming clearance of the goods under Open General Licence) with deliberate intent to get the goods cleared subsequently in the name of some non-existent firm under the provisions of OGL; that, in the absence of any valid import licence covering the subject goods, the importation was unauthorised and the same rendered the goods liable to confiscation under Section 111(d) of the Customs Act; and that Shri Vora as also M/s. Pushpak Chemicals Pvt. Ltd. and M/s. Nuchemo Plast, who had allegedly aided and abetted the commissions of Shri Vora, were liable to penal action under Section 112 of the Act. The Collector found the allegations to have been proved and hence passed the impugned order. 2.The allegations in the SCN were based on facts disclosed by scrutiny of import documents, examination of the goods and statements (recorded under Section 108 of the Customs Act) of the persons named below :- (i) Shri S. Venkatesh, Employee, Volkart Fleming Shippin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts could be arranged only by Shri Devang Vora through his brother Shri Vijay Vora who was the owner of Sordelli Plastic Inc. Shri Joshi further stated that Shri Devang Vora had told him that he would get the consignee's name in the import documents changed to other importers who could clear the goods as actual users in the normal course. Shri Joshi further stated that, during 1984-85, Shri Vora's firm viz. M/s. Rasiklal Tribhovandas Co., Bombay, had imported scrap through him and that he had given them a few blank signed letter heads of his firm (MASCOT) for the purpose of preparing declarations required for such importations. Shri Joshi added that Shri Vora might had made use of such letter heads for placing orders for import of the subject goods in the name of MASCOT. 4.2Shri Prakash Bhandare of NUCHEMO stated that Shri Devang Vora had approached him with a request to help him by clearing the consignments in the name of NUCHEMO and that he (Shri Vora) claimed to have duplicate set of documents for offering the goods to NUCHEMO at the same price. Shri Bhandare further stated that Shri Devang Vora had also asked him to provide final sales contract which was to be predated to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argo Movers stated that import documents of both the consignments were handed over to them by Shri G.H. Bhandare, representing his brother's firm NUCHEMO, that they prepared Bill of Entry but did not file the same as the original documents were not received from NUCHEMO and that subsequently they received the original documents from PUSHPAK with instruction to file Bill of Entry. 4.6Shri Shantilal Jain of PUSHPAK stated that, in February 1986 they had received enquiries from the foreign suppliers as to whether they were interested in the goods, that they were in need of the raw material and hence offered to buy the goods, that they were no longer interested in clearing the consignments although they had retired the documents from their bankers, and that he (Shri Jain) knew Shri Devang Vora for six to seven years. 4.7Shri Suresh Bhatia of Varsha Plastics stated that he had introduced M/s. Express Cargo Movers to Shri P.M. Bhandare for clearing the subject consignments, that he knew Shri Devang Vora who very often visited Shri Shantilal J. Jain, Director of both VARSHA and PUSHPAK, and that he had retired the import-documents from Central Bank of India as directed by Shri Jain an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods thereby rendering the goods liable to confiscation under Section 111(d) of the Customs Act. The appellant has no case that he did not receive the notice. Admittedly, he has never replied to the notice. The above allegation against him will, therefore, be held to have been conceded. The goods viz. acrylic plastic scrap was, undisputedly, an industrial raw material freely importable by actual (industrial) users. However, where the importer did not satisfy the actual user condition, any importation of the goods without specific licence was unauthorised in law and attracted Section 111(d) of the Customs Act for confiscation. As the allegation that the appellant had rendered the goods liable to confiscation under Section 111(d) stands undenied, he is liable to penalty under Section 112 of the Act. In this appeal, there is no challenge as to the quantum of penalty either. In the result, appeal No. C/614/88 is dismissed. 7.It has been noted by the adjudicating authority that M/s. Pushpak Chemicals (P) Ltd. had also not replied to the show cause notice nor appeared for personal hearing. In their appeal, they have admitted receipt of the notice and copies of the documents relied up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereafter they had nothing to do with the goods. It cannot be said that the appellants aided or abetted D.R. Vora's attempt to clear the goods unauthorisedly. Their case is altogether different from that of M/s. Pushpak Chemicals, in whose name the consignments were noted and Bills of Entry filed. There is a ground raised in this appeal that the appellants were not even aware of importation of the goods till they were contacted by D.R. Vora and that, when they became aware, they were given to believe that the goods had been lawfully imported. In other words, they had no mens rea. This plea appears to have the support of the available evidence in the case. The impugned order has not brought out anything to the contrary. In the result, we set aside the penalty on the appellants and allow their Appeal (C/599/88). Appeal No. C/500/88 : 9.The appellant, Shri Devang R. Vora, in this appeal, has challenged another order passed by the Collector of Customs, wherein a penalty of Rs. 3,88,000/- was imposed on Shri Vora under Section 112 of the Customs Act on the ground that he had rendered himselves liable to such penalty by effecting unauthorised importation of three consignments of High ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
