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TMI Blog2004 (5) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... ut payment of duty. The exemption from duty was under an obligation that the imported goods shall be used for production of export goods. However, the goods were, upon import, sold in the domestic market without fulfilling the export obligation. The duty so evaded was about Rs. 55 lakhs. Each of the appellants is a part player in that duty evasion. Accordingly, they were imposed penalties under the impugned order. These appeals challenge that order. 3. After noting the above background, we now proceed to take up the appeals. (I) Shri Nandalal Kishandas Khemani - (Appeal No. C/1077/98-Mum.) 4. In the impugned order, a penalty of Rs. 54,93,805/- has been imposed on the appellant along with demand of an equal amount of duty. This is, upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made the payment to the overseas supplier. Nandlal Khemani further admitted that even though the goods were imported in the name of his firm, he did not know where the goods were disposed of after customs clearance. He admitted that he had not physically taken possession of the goods. According to him, Naresh A. Shah and Minesh Shah are the persons who had cleared the goods duty free from Customs. The goods were sold in the local market by them. No export was made in pursuance of the advance licences under which the imports were made. He also admitted that he is liable to pay duty on the goods cleared duty free as he is aware of the export obligations cast on the importer in cases where Advance licences have been used to clear the goods dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and signing import documents and collecting a huge commission, it is not open to the appellant to disown the imports. 6. We find that licence has been obtained and import made by the appellant's proprietary firm. The relevant import documents were also signed by him. After such a clear involvement, that too on receipt of a premium of Rs. 35 lakhs it is not open for the appellant to submit that he was innocent and had been made the fall guy. In these circumstances, we are of the view that imposition of penalty on the appellant was justified. However, taking into account the various pleas made by the appellant, we reduce the penalty on him to Rs. 15 lakhs. No variation in the duty demand is called for. (II) Shri Naresh A. Shah - (Appeal N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended that this sub-section relates post-import activities and since the appellant had not dealt with the imported goods no penalty could be imposed on him. He has also contended that his offence, if at all, would be under Import-Export law inasmuch as he has bought and sold DEEC licences. 8. Learned SDR has submitted that this is a case of conspiracy involving many people. There was elaborate conspiracy hatched by the parties to enrich themselves by customs duty evasion. The scheme was to obtain DEEC licences, carry out imports against them without the payment of Customs duty and to sell the imported goods in the market without ever using it for meeting export production. The learned DR has pointed out that the materials on record have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port law for being involved in the buying and selling of DEEC licences. This is a case of conspiracy and this defence cannot find acceptance. The appellant is admittedly a licence broker. The present DEEC licences were not open for sale. Therefore, the appellant could have no legitimate position as a broker in regard to these licences. The appellant's involvement is clearly with evasion of duty and not as a licence broker. The appellant had voluntarily admitted to his involvement and had also deposited an amount of Rs. 11 lakhs towards duty evaded. In a conspiracy case, liability is common and not restricted to the bit role played by each conspirator. Such partitioning of responsibility and guilt go against the legal provision for dealing w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procuring those licences by purchasing them from the licence holder, knowing fully well that such an act is in violation of the provisions of Notfn. No. 203/92, renders him liable to penal action under Sec. 112(b) of the Customs Act. He has not merely purchased the licences. He actually is a person concerned in dealing in goods which are liable to confiscation having knowledge of that fact and therefore is liable for penalty under Sec. 112(b) of the Customs Act." 12. The submission of this appellant is almost the same as that of Shri Naresh A. Shah. It is his contention that as a licence broker he was not liable to punishment under Customs Act. As we have noted in the case of Shri Naresh A. Shah, in a case of conspiracy, liability is com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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