TaxTMI 
TaxTMI 
2017 (5) TMI 593
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....to this case are that investigation was conducted against Didwania Family Group, headed by Shri Ramgopal Didwania on the grounds of Undervaluation of imported group, ITC violation and mis-declaration of importer's relationship with the suppliers and non-existent importing firms. The investigation revealed that impugned goods namely Brass Scrap, Electrolytic Copper Wire Bars/ Rods, LLDPE etc. were imported in name of following parties ; (i) M/s Western Metal Corporation, Kalmboli, Bombay (ii) M/s GMC Insulators (India), Calcutta (iii) M/s Integrated Plaschem, New Delhi (iv) M/s Star Wire & Cable Industries, New Delhi (v) M/s Marvel Impex, Calcutta The show cause notice was issued to the Appellants, amongst others, on the ground that Shri Deendayal Didwania and Navneet Kumar Didwania allegedly caused unauthorized import of impugned goods in the fictitious names as the importer firms did not have IEC Code numbers. Further that the Appellant M/s Donald & Mcarthy Pte Ltd, and its directors Shri Vinodkumar Didwania & Smt. Nidhi Didwania exported the impugned goods from Singapore. The adjudicating authority passed the impugned order on t....
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....onfiscation. He submits that as may be found from the show cause notice, earlier the imported consignments were cleared by the same parties. It is not the department's case that they are liable for confiscation under Section 111 (d) readwith Section 7 of the FT (DR) Act on the ground that M/s Western Metal Corp. and M/s Star wire did not possess IEC. This shows that it is a tacit admission that in absence of IEC the imported goods cannot be confiscated. That the goods has been wrongly sold by the department without giving notice to the Appellants inspite of the fact that there is no rival claimant and at several places the SCN admits that the goods were shipped by Appellant. That the department cannot on the one hand take a stand that the Appellants shipped the goods to India and on the other hand take a stand that the ownership of the Appellants over the goods are not proved. He submits that the goods surreptitiously disposed off by the department by passing unjustifiable delay in adjudication. That the department could not produce any detail of the sale although matter was argued on different dates. That without placing the details of sale proceeds the penalty cannot be quant....
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.... inapplicable, as no past consignment is involved. He prays to quash the penalties. All the Appellants also filed written submissions in support of their contentions. 4. On the other side, Shri K. M. Mondal, Special Counsel appearing for the revenue submits that none of the notified parties at the time of importer had IEC code which is mandatory requirement for import in terms of provisions of Section 7 of the FT (DR) Act, 1992. That Para 18 of the relevant Export and Import Policy also provides that no export or import can be made without any IEC Code. During investigation it was found that none of the importing firm exist at the given address and therefore for the above reason the Adjudication order is justifiable. He relies upon the judgment in case of Uniflex Cables Ld. 1995 (77) ELT 737 (TRI), Peer Chem. And Metallurgy p. Ltd. 2002 (145) ELT 96 (T) and Molok Boloky Vs. CC, Mumbai 2005 (192) ELT 294 (T). He further submits that the claim of the Appellant that since the importing firms refused to clear the goods, the title remained with M/s Donald Macarthy is incorrect as no evidence was produced that the importing firms refused to take the delivery. Secondly no docume....
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....stent, thus rendering them sham and ineligible for imports. It is on records that none of the firms came out during investigation to show their genuineness. Further it is found that M/s Donald Macarthy had transferred the documents not through normal banking channels but directly to the said non-existent firms. In such case it is very much clear that the intention of the supplier as well as importing firms were not bonafide. M/s Donald did not come forward to show as to how they have entered into contracts with these non existing firms. Once M/s Donald Macarthy had transferred the title of goods to these non existent firms it lost its ownership to such goods. It was especially so that it is not a mere coincidence that all the goods were supplied to all non existing firms with none of them having IEC code. Even during investigation or in adjudication process the bonafides of these firms could not be proved. The Appellant had been taking a ground that not having an IEC code is a procedural requirement but does not entitle the imported goods liable for confiscation and has cited judgments in support of their contention. However it is to be seen that it is not the case of simply non av....
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....ded to be cleared by non existent firms with no IEC code which made the imports improper and illegal. The judgment of the Hon'ble Supreme Court in case of CC, Kolkata Vs. Grand Prime Ltd. 2003 (155) ELT 417 (SC) cited by the Ld. Special Counsel is applicable as in the present case neither the imports were valid nor the importer were existing. For the same reason the sale proceeds of the export goods cannot be remitted to the Appellant M/s Donal Macarthy. Moreover, no evidence of sale of the good were brought on records. Even if it is assumed that the imported goods in question has been disposed of by the custom/custodian, this is not the subject matter of this appeal, hence the issue, of sale of the goods and it's proceed, can not be entertained in the present appeals. The Appellant M/s Donal Macarthy has pleaded that since the Bill of Entry was not filed and thus taxable event was not reached. In this context we find that the import is complete as soon as the goods are brought into the India, hence the contention of the Appellant cannot be accepted. For these reasons we do not find any infirmity in the adjudication order towards confiscation of goods. 7. As regard penalty o....