TaxTMI 
TaxTMI 
2009 (7) TMI 1131
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....nfiscation of goods imported by B/E No. 3825 dated 10-9-1997 valued at Rs. 69,78,090/- which were cleared against forged Special Import Licence bearing No. P/W/0025312 dated 27-12-96 under Section 111(d) and 111(o) of Customs Act, 1962. I, however, redeem the same on payment of redemption fine of Rs. 10,00,000/- (Rupees ten lakhs only) by M/s. Cannaught Plaza Restaurant Ltd. under Section 125 of Customs Act, 1962. (3) I impose a penalty of Rs. 3,00,000/- (Rupees three lakhs only) on M/s. Cannaught Plaza Restaurant Ltd. under Section 112(a) of the Customs Act, 1962. I do not impose any penalty on Shri Jagdish Agarwal of M/s. Cannaught Plaza Restaurant Ltd. as investigation has not brought out any direct evidence of his abetment in the commi....
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....e Intelligence (DRI) sensed foul play in relation to the above import. In May, 2000, the importer was asked to product certain documents and, accordingly, they produced copies of bill of entry, bill of lading, debit note relating to payment for licence etc. The DRI, after several years, recorded statements under Section 108 of the Customs Act from the importer's CHA and from the broker from whom the importer procured the "licence" through CHA. The DRI obtained a letter from the office of the Directorate-General of Foreign Trade, wherein it was informed that Licence No. 0025312 had not been issued to M/s. Cepham Labs Ltd. On the basis of this information from the DGFT, the DRI took the view that the clearance of the aforesaid goods had been ....
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.... the importer's challenge against penalty, the ld. counsel submits that the penalty imposed on them by the Commissioner is liable to be set aside on the sole ground that there is no evidence on record to show that the importer was aware of the forged character of the licence at the time of importation. The importer is a bona fide purchaser of the licence and had no reason to believe that the document was forged. He had no mens rea. Therefore the penalty on the importer cannot be sustained. 4. The ld. counsel for Shri Mahendra Vallabhai Shah, proprietor of M/s. Unity Impex (broker) and M/s. Chanchal Cargo (CHA) refers to the various statements recorded by the department under Section 108 of the Customs Act and submits that there is nothing ....
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....d out that, where a person presents a Special Import Licence before the Customs authorities for clearance of goods which are otherwise restricted/prohibited, the burden is on him to ensure that the licence is genuine It is submitted that the importer or their CHA did not take adequate safeguards in this regard. It is also argued that, for imposing a penalty under Section 112(a) of the Act, there is no requirement of mens rea. In her rejoinder, the ld. Counsel for the broker and the CHA points out that the charge against them is abetment but there is no evidence in support thereof. The CHA was only following the instructions of the importer. The broker had done nothing except sale of a licence to the importer through CHA for valid considerat....
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....als filed by the CHA and the broker, the challenge is against the penalties imposed on them under Section 112(a). As rightly pointed out by their counsel, the CHA was only following the instructions of the importer. As per such instructions, the CHA procured the "licence" from Shri Mahendra Shah (M/s. Unity Impex), a fact admitted by the importer in their reply to the show cause notice. It further appears from the reply that an amount of over Rs. 13 lakhs was paid by the importer to the CHA by demand draft, out of which an amount of Rs. 8.1 lakhs was paid by the latter to Shri Mahendra Shah as consideration for the "licence". This would mean that the CHA charged over Rs. 2 lakhs from the importer towards commission and other charges. These ....