TaxTMI 
TaxTMI 
2016 (5) TMI 892
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....Kiran Choksi and Shri Pragnesh Jain under Section 114A of the Customs Act, 1962 and Section 112 of the same Act respectively. 3. The relevant facts that arise for consideration are that DRI received intelligence regarding diversion of imported polyester fabrics/cotton fabrics/HDPE, falsely declaring the manufacturer-exporter as Sahil Industries. Statements of various persons were recorded and Shri Kiran Choksi and Shri Pragnesh Jain had been implicated by various persons and the goods were being delivered to someone else other than the importer; that the declared address of Sahil Industries at Santacruz was found to be non-existent; no manufacturing activity took place in two declared factory premises at Wada and Bhiwandi and false declara....
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....r in not imposing penalties on both the respondents. He would submit that Shri Kiran Choksi was dealing with the suppliers, making payment to suppliers, paying duty by depositing money in Bank and ultimately diverting the goods to market and was working as a real importer and holding himself to be importer under the Customs Act, 1962. It is also his submission that high sea sellers have recorded that they were dealing with Shri Kiran Choksi. It is also his submission that Shri Kiran Choksis two employees had filed the documents and deposited the amounts in Banks on behalf of Sahil Industries as per the direction of Shri Kiran Choksi. As regards Shri Pragnesh Jain, it is his submission that he being CHA, confirmed participation of two emplo....
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....vs. Pramod Kumar Dhamija reported in 2016-TIOL-15-SC-CUS and the judgment of the Honble Kerala High Court in the case of K.P. Abdul Majeed vs. CC, Cochin reported in 2014 (309) ELT 671 (Ker.), for the proposition that person charged with financing, smuggling needs to be prosecuted and prosecution should continue. It is his further submission that in the following cases, it was held that misuse of advance licences needs to be punished severely:- (i) CC, Chennai vs. Ashok Enterprise reported in 2014 (302) ELT 191 (Mad.); (ii) CC, Chennai vs. Pattu Exports Pvt. Ltd. reported in 2015 (317) ELT 663 (Mad.); (iii) Amar Jyoti Packers vs. CCE reported in 2007 (207) ELT 345 (Del.) / 2007 (211) ELT A134 (SC); (iv) Sushil Agarwal vs. CC(I), Mu....
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....h Jain, the Tribunal remanded the matter with clear direction that the adjudicating authority should bring out clearly the whole episode and how the provisions of Section 112(a) and (b) of the Customs Act are attracted. 9. The adjudicating authority in the entire order-in-original from para 96 to 108 of the impugned order has dwelt upon the evidences relied upon by the Revenue for seeking imposition of penalties on Shri Kiran Choksi. The sum and substance of the departments seeking to impose penalty under Section 114A was that Shri Kiran Choksi was de facto owner of Sahil Industries and had imported the goods under various advance licences and subsequently diverted them to the local market. Hence Sahil Industries being a proprietary conce....
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....ran Choksi to alleged goods involved in the case. The adjudicating authority has also recorded that Shri Kiran Choksi in his statements had stated that two employees were only employed as sweepers and they were not given any work; who had implicated Shri Kiran Choksi; there appeared to be no investigation to ascertain the truth of the statement of Shri Kiran Choksi and it would indicate that Shri Kiran Choksi was preparing documents and depositing money in the Bank account of Sahil Industries, which itself cannot be taken as conclusive evidence to indicate in the eyes of law that the various importations involved in the case belong to and meant for Shri Kiran Choksi. Coming to such conclusion, the adjudicating authority has dropped the proc....
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....t was also pointed out that as a Clearing Agent his job ended with the clearance of the goods and that the subsequent events consequent to the clearance of the alleged goods from the Customs Area is of no relevance, especially, when there is no evidence to implicate the notice in any active involvement in the subsequent diversion of the goods. In this context, Shri Jain has also drawn attention to the definition of abetment in Section 107 of the Indian Penal Code and has argued that the records of the case does not throw any positive evidence to indicate that he had quoted certain case laws. I have closely examined the above said contentions and arguments of Shri Jain and I have also perused the case laws cited. Evidence on record nowhere....