9911796707
TMI Blog2004 (6) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... ts No. 2, and imposed penalties on all the Appellants, besides confiscating the HDS with an option to redeem the same on payment of fine. 2. Shri L.P. Asthana, learned Advocate, submitted that M/s. Dewan Rubber Industries, Appellants No. 1 a 100% Export Oriented Undertaking (EOU) manufacture bicycle tyres and tubes since March, 1993 and they are exporting these goods since April, 1994; that they imported an hydraulic drive system (HDS) under Bill of Entry dated 17-4-1996 for using the same for compression of various materials for the formation of tyres and tubes; that the said HDS was cleared without payment of duty availing the exemption under Notification No. 13/81-Cus., dated 9-2-1981; that they used the HDS for a number of years in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Section 114A of the Customs Act will not be applicable for imposition of penalty since the import was made prior to coming into force of Section 114A of the Act. 3.2 He contended that they have not committed any commission or omission which has rendered the impugned goods liable to confiscation; that as they have fulfilled the export obligations, machine was removed after informing the Central Excise Officer in charge of 100% E.O.U., permission has been granted by the Development Commissioner to sell the impugned machine and they are willing to discharge the duty liability, the machine is not liable to confiscation; that for these reasons, no penalty is imposable on any of the Appellants. 4. Countering the arguments Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not produce any document showing date of removal of the impugned System to Moradabad nor he could produce any document to evidence any defect in the system; that the transit document for shifting the system had also not been produced; that even there was no fulfledged workshop in M/s. Dewan Sugar Ltd. as admitted by Shri J.S. Cheema in his statement dated 14-9-99; that he had also deposed that he had never dealt with hydraulic drive system like one in question. He, therefore, contended that no depreciation need be allowed on the value of the impugned system and confiscation of the machine is warranted and penalty is imposable on all the Appellants. 5. We have considered the submissions of both the sides. M/s. Dewan Rubber Industries ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts to prove that the impugned system was used in the process of manufacture of goods by the 100% E.O.U. There is no record of the transport of the system from 100% E.O.U. to Moradabad unit as according to the Appellants transit documents were lost in transit. The Commissioner in the impugned Order has also discarded their plea of System being sent for repair to Moradabad unit as Jaswinder Singh Cheema, Chief Engineer of Dewan Sugars Ltd., had admitted in his statement dated 14-9-99 that he had no prior experience of dealing with test/repair of the impugned system nor was he supplied with any technical literature of the system and there was no fulfledged workshop in the Sugar Unit. Further, the System was found installed on concrete base of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e System was withdrawn. However, the penalty imposed is the maximum penalty which is not warranted. We feel that interest of justice will be served if the penalty on M/s. Dewan Rubber Industries is reduced to Rs. 50 lakhs. We order accordingly. No separate penalty on M/s. Dewan Rubber Industries Ltd., 100% E.O.U. is imposable as the penalty has already been upheld (though reduced) on M/s. Dewan Rubber Industries Ltd. We, accordingly set aside the penalty of Rs. 5 lakh imposed separately on 100% E.O.U. 5.2 A separate penalty is imposable on Shri V.S. Dewan, Managing Director as knowingly he has sent the impugned System to another unit. We, however, reduce the penalty imposed on him to Rs. 2 lakhs only. Penalty is also imposable on M/s. Dew ..... X X X X Extracts X X X X X X X X Extracts X X X X
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