TaxTMI 
TaxTMI 
TaxTMI 
2018 (8) TMI 504
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....essels calling at various port of Gujarat. From the fleet vessels they have, one utility boat named MV, Al-Vard used by them in towing of sea playing vessels. On intelligence received by Officers of DRI, Ahmedabad that Sh. Zohar Mallampattiwala, Director of M/s GCMSPL was indulging in illegal import of diesel oil in barges and tugs of GCMSPL deployed at Hazira Port, Surat and its boat MV Al-Vard was indulging in illegal import of diesel oil and has retained the same as bunker for its use. The investigation by DRI revealed that GCMSPL illicitly imported diesel oil in the Tug Al-vard. The quantity of said diesel oil was ascertained by viist and boarding on the said boat at L&T Jetty by the officers of DRI, Sh. Mallampattiwala Director of GCMS....
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....and Bank Guarantee of Rs. 51,82,850/-. Thereafter, the SCN dated 03.08.2012 was issued to GCMSPL Sh. Zohar Mallampattiwala, Sh. Pattvitti Parukutty Radhakrishanan, Sh. Hanzel Malik, Sh. Bosov Stanislav which was culminated into adjudication order, wherein the charges proposed in the SCN were confirmed and following order has been passed: i. Confiscated 103.657 MT of diesel oil valued at Rs. 51,82,850/- found in the Tug and allowed its redemption on fine of Rs. 13 Lakhs. ii. Confiscated 46.343 MT of diesel oil valued Rs. 23,17,150/- not found in the Tug and allowed its redemption on fine of Rs. 6 Lakhs. iii. Confirmed duty demand of Rs. 12.71 Lakhs approx on the clandestinely procured 150 MT diesel oil with equal penalty of Rs. 12.71 L....
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....value hence, the original value on 6.75 Crore taken by the Customs is not correct. He submits that as per section 115(2) of Customs Act, 1962, redemption fine of conveyance cannot exceed the market price of the goods which is sought to be imported inappropriately. Therefore, the redemption fine of Rs. 1.75 Crore on the Tug Al-Vard is travelling beyond the provision of Section 115(2). He submits that Hon'ble Supreme Court in the case of Jain Exports Private Limited reported at 1993 (66) ELT 537 (SC) held that while imposing redemption fine one must keep in mind the totality of circumstance and the benefit derived by the importer from illegal import. He submits that in this case the benefit derived by the appellant is only Customs Duty amount....
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.... has been brought on record that they were aware that by their action diesel oil or Tug AL-Vard has become liable for confiscation under Section 111 of the Customs Act, 1962, penalty under Section 112 can only be imposed when the person knows that goods are liable to confiscation or abate such act by which such goods are liable for confiscation. In support of his above submission, he placed reliance on the following judgment: O.P. Agarwal Vs. C.C., Kandla 2005 (185) ELT 387 (Tri. Del.) Carpenter Classic Exim Pvt. Ltd Vs. C.C. Bangalore 2006 (200) ELT 593 (Tri.Bang.) Associated Plastics And Rayons Vs. CCE & Customs, Vapi 2007 (210) ELT 524 (Tri. Ahmd.) CCE Vs. Amin Chandrakant Bhailalbhai 2010 (258) ELT 36 (Guj) Grand Slam Express ....
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....eized was admittedly 103.657 MT on which the amount of duty comes to Rs. 8.78 lakhs only. Therefore, the redemption fine of Rs. 13 lakhs imposed on confiscation of diesel oil is not justified, therefore, redemption fine on this count deserved to be reduced. The lower authority has confiscated the quantity of 46.343 MT of diesel oil and imposed redemption fine of Rs. 6 Lakh. This quantity was not available as the same was disposed of therefore, the goods which were not available for seizure the confiscation of non-existent goods cannot be made and no redemption fine can be demanded as held by Larger Bench of CESTAT in the case of M/s Shiv Kripa Ispat Pvt Ltd (supra) which was approved by Hon'ble Supreme Court, reported at 2005 (184) ELT A36.....
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....n tug is very exorbitant and the same needs to be reduced substantially. 7. As regard the personal penalties imposed on the employees, namely, Sh. P P Radhakrishnan and Sh. Hanzel A Malik we find that these person are mere employees and performing their duties as per the instruction of their employer. There is no evidence that they have got any incentive out of the benefit derived by the appellant company. This Tribunal in the case of O P Agarwal (supra) held that employees of company carrying out orders given to them are not person incharge / responsible for conduct of its business, hence not liable for penalty. In the case of M/s Carpenter Classic Exim Pvt. Ltd (supra) this Tribunal has taken a view that employee having acted under the d....