2006 (6) TMI 323 - AT - Customs

Tribunal overturns duty demand and penalties due to officers' errors in SEZ gold shortage case.

GOLD CRAFT Versus COMMISSIONER OF CUSTOMS, NOIDA

GOLD CRAFT Versus COMMISSIONER OF CUSTOMS, NOIDA - 2006 (205) E.L.T. 1138 (Tri. - Del.) Issues:Appeal against order confirming demand of Customs duty and penalty on appellant company and employees for shortage of gold in SEZ unit.Analysis:The case involved an appeal against an order confirming the demand of Customs duty and penalty on an appellant company and its employees due to a shortage of gold in their SEZ unit. The appellant, a jewelry-manufacturing unit in Noida SEZ approved by the Ministry of Commerce, imported gold duty-free for manufacturing jewelry for export. Customs officers visited the unit for stock verification and found a shortage of 9112.300 grams of gold. The officers sealed the safe and cupboard, and upon further investigation, the appellant produced jewelry to make up for the shortage. The adjudicating authority confirmed the demand and imposed penalties based on the belief that the jewelry was produced to cover up the shortage.The appellant contended that the case was based on presumptive grounds and argued that the gold jewelry was indeed in the safe at the manufacturing premises. The appellant's representative stated that only the proprietor had access to the safe keys. The defense argued that goods could not enter or leave the SEZ unit without the officers' knowledge. The Departmental Representative opposed the appellant's defense, claiming the jewelry was brought in on the day of verification to cover the shortage. The officers' statements and panch witnesses indicated that all safes were open and no jewelry was found in the manufacturing area.Upon considering the submissions and evidence, the Tribunal found discrepancies in the officers' actions. The panchanama only mentioned sealing one safe, while the appellant presented photographs showing two safes in the unit. The Export/Import Manager confirmed that only the proprietor had access to the safe keys. The Tribunal noted that if the second safe was inaccessible, the officers could not have verified its contents. Additionally, there was no evidence that the jewelry was brought in from outside on the day of verification. The Tribunal concluded that the gold jewelry in question was likely in the second safe of the unit, leading to no discrepancy between physical and book stock. Consequently, the allegation of clandestine removal failed, and the duty confirmation and penalties were set aside.In light of the above findings, the Tribunal set aside the impugned order and allowed the appeals with any consequential relief.