2003 (5) TMI 175 - AT - Customs

Tribunal Upholds Confiscation of Acrylic Plastic Scrap, Penalties for Unauthorized Importation

The tribunal upheld the absolute confiscation of Acrylic Plastic Scrap consignments due to unauthorized importation, imposing penalties on appellants for ... Appeal - Grounds - Natural justice - Hearing - Adjournment - Penalty - Imposition Issues Involved1. Confiscation of consignments under Section 111(d) of the Customs Act.2. Imposition of penalties under Section 112 of the Customs Act.3. Violation of principles of natural justice.4. Actual User condition for import under Open General Licence (OGL).5. Involvement and liability of various appellants in the unauthorized importation.Issue-wise Detailed Analysis1. Confiscation of Consignments under Section 111(d) of the Customs ActThe Collector of Customs ordered the absolute confiscation of two consignments of Acrylic Plastic Scrap from the USA consigned to M/s. Mascot Metal Traders under Section 111(d) of the Customs Act, read with Section 3(2) of the Imports and Exports (Control) Act. The importation was deemed unauthorized due to the absence of a valid import license, rendering the goods liable to confiscation.2. Imposition of Penalties under Section 112 of the Customs ActPenalties of Rs. 1,90,000/-, Rs. 50,000/-, and Rs. 50,000/- were imposed on the appellants for aiding and abetting the unauthorized importation. The Collector found that Shri Devang R. Vora had imported the goods in the name of M/s. Mascot Metal Traders, intending to get them cleared under OGL by a non-existent firm. The other appellants, M/s. Pushpak Chemicals Pvt. Ltd. and M/s. Nuchemo Plast, were found to have aided Shri Vora.3. Violation of Principles of Natural JusticeShri Devang R. Vora and M/s. Pushpak Chemicals Pvt. Ltd. challenged the Collector's order on the ground of violation of natural justice, claiming they were not given an opportunity for a personal hearing or to cross-examine witnesses. However, the tribunal rejected this plea, noting that Shri Vora had not replied to the show cause notice and had not substantiated his claims of denied adjournments or cross-examinations. Similarly, M/s. Pushpak Chemicals Pvt. Ltd. failed to prove their claims of not being given a chance to file written submissions.4. Actual User Condition for Import under OGLThe consignment was freely importable by actual (industrial) users. However, M/s. Mascot Metal Traders did not qualify as an actual user, making the import unauthorized. The tribunal upheld that the goods were liable to confiscation under Section 111(d) due to the failure to meet the actual user condition.5. Involvement and Liability of Various Appellants- Shri Devang R. Vora: The tribunal upheld the penalty, finding that he had deliberately caused unauthorized importation, rendering the goods liable to confiscation. His appeal was dismissed.- M/s. Pushpak Chemicals Pvt. Ltd.: The tribunal found that they aided Shri Vora by lending their name as actual users to clear the goods under OGL. Their appeal was also dismissed.- M/s. Nuchemo Plast: The tribunal found that M/s. Nuchemo Plast had initially agreed to clear the goods but withdrew from the deal when Shri Vora demanded they bear 50% of the container detention charges. The tribunal concluded that M/s. Nuchemo Plast did not aid or abet the unauthorized importation and set aside the penalty, allowing their appeal.Additional Judgment on HDPE ConsignmentsIn a separate order, the Collector imposed a penalty of Rs. 3,88,000/- on Shri Devang R. Vora for unauthorized importation of three consignments of High-Density Polyethylene (HDPE). The tribunal upheld this penalty, finding that the appellant had imported the goods in the name of M/s. Naresh Udyog, who did not fulfill the actual user condition. The appeal was dismissed, affirming the confiscation and penalty under Sections 111(d) and 112 of the Customs Act.