TaxTMI 
TaxTMI 
2016 (3) TMI 557
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....uty. A show cause notice dtd 19.10.2005 was issued by the Asst. Director General of DGCEI, Zonal unit, Mumbai demanding duty, on import of duty free goods in term of license, which were not used for export purpose and diverted in the domestic market by M/s Raj International and to impose penalty on them amongst others including appellant herein. The Adjudicating Authority confirmed the demand of customs duty amounting to Rs. 30,31,697/- on three lacs pieces of Ball Bearing and Rs. 16,02,244/- another consignment of 27,989 mtrs of Polyester Fabrics alongwith interest and imposed penalty of equal amount of duty on M/s Raj Internationals. It has also imposed penalty on the appellants herein amongst others, are as under : Sr. No Name (Shri) Amount of penalty imposed (in Rupees) 1 Hasmukh Ganetra Twenty Lakhs 2 Sunil Agarwal Three Lakhs 3 Ramnivas Agarwal Three Lakhs 4 Nilesh Bansal One lakh 3. Shri Prashant Patankar, Ld Counsel, is appearing on behalf of Shri Sunil Agarwal and Shri Ram Nivas Agarwal. The Ld Advocate, Shri G B Yadav, is appearing on behalf of Shri Hasmukh Ganatra. None appears on behalf of Shri Nilesh Bansal. The....
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....nt) in his statement dtd 4.12.2002 stated that he had undertaken the import clearance on behalf of M/s Raj Internationals, SEZ, Sachin Surat, since August 2002; that so far as he has handled only two import consignments, viz., one of ball bearings and the other of polyester fabrics; that the said consignments have been cleared from Mumbai port and Nhava Sheva port, respectively on behalf of M/s Raj Internationals, SEZ, Surat; that about the details of the said two consignments cleared, he stated that the first import consignment of 15 pellets of ball bearing having a net weight of 14,500 kgs was cleared from the Mumbai port, under a customs TP No 28 dtd 13.8.2002 and its job No 195/2002-2003; that the second imported consignment was cleared from the Nhava Sheva port consisting of 159 packages of polyester fabrics having a net weight of 10,143.30 kgs under a customs TP No 122 dtd 3.9.2002 and their job No.196/2002-2003; that upon the material reaching at Surat SEZ unit of M/s Raj Internationals, the Landing Certificate (LC) was obtained by the said importer which was handed over to him by Shri Rajendra Thakkar, the proprietor of M/s Raj Internationals; that they have in turn, submit....
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....customs station and the proper officer is satisfied that the goods are bona fide intended for transhipment of such customs station, the proper officer may allow the goods to be transhipped, without payment of duty, subject to such conditions as may be prescribed for the due arrival of such goods at the customs station to which transhipment is allowed. 55. Liability of duty on goods transited under section 53 or transhipped under section 54.Where any goods are allowed to be transited under section 53 or transhipped under sub-section (3) of section 54 to any customs station, they shall, on their arrival at such station, be liable to duty and shall be entered in like manner as goods are entered on the first importation thereof and the provisions of this Act and any rules and regulations shall, so far as may be, apply in relation to such goods." 8. The expressions "where any goods imported into a customs port or customs air port" in Section 54 of the Act 1962 make it clear that the transhipment of the goods without payment of duty would be allowed after importation of the goods into a customs port. It provides that the importer shall file Bill of Transhipment to the proper ....
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....ly has been filed by them. The department has discharged the initial onus by raising the allegations that they had dealt with the goods, Ball Bearings involved in the instant case. Therefore I Have to hold that the allegations of their involvement in procurement and sale of goods locally which should have been exported stand proved and therefore a penalty has to be imposed on them under Section 112 of the Customs Act 1962. However, since they are not the registered persons against whom duty can be confirmed under Section 28(b) ibid, I hold that no penalty under Section 114A of the Customs Act 1962 can be imposed on them. iii) Penalty on Shri Hemant Trivedi of M/s. SI As mentioned at appropriate place herein, no reply has been filed by him. Nor did he avail himself of the opportunities of being heard in person. The department has discharged the initial onus by raising the allegations that they had dealt with the goods, Ball Bearings involved in the instant case. Therefore I have to hold that the allegations stand proved and therefore a penalty under Section 112 of the Customs Act 1962 has to be imposed on him However, since he is not the registered persons against ....
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....Raju Mohatta of Kolkotta, proposed him to help him in selling imported ball bearings. He has assisted Shri Raju Mohtta for selling of the imported bearings. It is further submitted that the appellants had no knowledge from where the goods were procured by the said unit and sold in the open market illicitly. It is further submitted that the penalty was imposed on mere presumption and assumption. It is stated that even both the appellants are brothers but they have separate business identity. No statements of Shri Ram Nivas Agarwal was recorded. The penalty imposed on Shri Ram Nivas Agarwal on the basis of the statement of Shri Sunil Agarwal. It is further submitted that the Adjudicating Authority heavily relied upon the statement of Shri Hasmukh Ganatra. He further submits that the show cause notice proposed penalty under Section 114A of the Act and the Adjudicating Authority imposed penalty under Section 112 of the Act, which is beyond the scope of show cause notice. 11. On the other hand, the Ld Authorised Representative on behalf of the Revenue reiterates the findings of the Adjudicating authority. He particularly drew the attention of the Bench the relevant portion of the sta....