TaxTMI 
TaxTMI 
2019 (5) TMI 611
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....n M/s Surya Pharmaceuticals Ltd in terms of Section 125 of the CA'62. (2) I confirm a duty of Rs. 48,83,442/- along with interest on M/s Surya Pharmaceuticals Ltd in terms of Section 28(2) and Section 28AB of CA'62 (3) I impose a penalty of Rs. 10,00,000/- (Rupees Ten Lakh only) on M/s s Surya Pharmaceuticals Ltd in terms of Section 112(a) of CA'62. (4) On account of the imports made under 47 DEPB License, I confirm a duty of Rs. 1,32,28,562/- along with interest on M/s Sai Shradha Export Pvt Ltd in terms of Section 28(2) and Section 28AB of CA'62 (5) There shall be a penalty of Rs. 1,32,28,562/- on M/s Sai Shradha Export Pvt Ltd under Section 114Aof the Customs Act, 1962. However if they pay the entire amount of demand now confirmed and the interest leviable thereon within 30 days from the receipt of this order, the penalty amount shall stand reduced to s 33,07,140/- (being 25% of the above penalty amount) in terms of first and second proviso to Section 114A of Customs Act, 1962, provided that the reduced amount of penalty is also paid within the said time limit. The amount of Rs. 5,00,000/- paid by SSEPL during investigations may be adjusted to....
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.... Powder" and empty carbuoys were also recovered. LR's issued by transporter and several other documents like copies of Shipping Bills, Bill of Ladings, applications for DEPB Licenses etc were also recovered. 2.2 Detailed investigation and scrutiny of the documents was undertaken. In respect of live consignments of 14 Shipping Bills on its way to Singapore revealed that SSEPL procured pharmaceutical bulk drugs like "Amoxicillin Trihydrate" and "Cafadroxil" from SPL under 14 ARE-1's for third party exports against SPL's DEEC Licenses. The said goods were diverted in the local market and SSEPL filled empty carbuoys with soap stone powder in Mhape godown of M/s Petrosolv India Company (PIC) and exported the same by mis-declaring as "Pharmaceutical Bulk Drugs" under 14 DEEC Shipping Bills and the 14 ARE-1's recovered. 2.3 Though it is apparent that duty free imported goods under DEEC License were used in the manufacture of goods meant for export, but failure to export the same vitiates and contravenes the provisions and conditions of such duty free imports. Hence the duty free imports of inputs as well as the finished goods containing such inputs become liable for confiscation bes....
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....s created by him in name of lowly paid employees and with the help of cheque discounting from M/s Rajguru Impex (India) Pvt Ltd. 2.7 M/s Fast Forward and M/s Santon Shipping Services, Both CHA had presented fabricated ARE-1's/ export documents to the custom Authorities along with goods misdeclared as bulk drugs. They had allowed their licenses to be used for such mis declared fraudulent exports and have abetted illegal acts committed by M/s SSEPL. 2.8 The exports of misdeclared goods was made through Nhava Sheva and imports were made through Kandla, ICD Tughlakabad and Nhava Sheva. Therefore a SCN answerable to different jurisdictional Commissioners was issued by the investigating agency. CBEC vide Notification No 12/2009-Cus (NT) dated 20.01.2009 appointed Commissioner of Customs (Import) JNCH Nhava Sheva as common adjudicating authority in the matter. 2.9 Commissioner has vide his order referred in para 1, supra adjudicated the matter. Aggrieved appellants have filed these appeals. 3.1 We have heard Ms Pooja Reddy Advocate for M/s Fast Forward and Shri Bhushan Kamble, Assistant Commissioner, Authorized Representative for Revenue. None of the other appellants were repr....
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.... which is of 2009 and nearly 10 years have elapsed in interest of justice all the appeals have been taken up for consideration and disposal. 4.3 Commissioner has in his order recorded following findings in para 21 of his order. Findings recorded are reproduced below: 4.4 From the findings of the Commissioner as recorded above the case of export fraud has been well made out against all the other appellants except the two CHAs. In our view sufficient evidence has been brought on record to uphold the charges made against them and the penalties proposed on them along with confiscation of goods and demand of duties are justified. In our opinion in such cases of economic offences where such fraudster are playing with the economic fabric of the country strict actions as provided under the law is warranted. 4.5 In case of the CHA namely M/s Fast Forward and M/s Santon Shipping Services when Commissioner himself is recommending the action under CHALR, 2004 we do not find any justifiable reason for imposition of penalty under Section 112(b) of the Customs Act, 1962. Even show cause notice or OIO do not bring out how the knowledge of fraud could be imputed to them. In result we do no....
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....t. They have allowed the duo of Charles Patrick and Subramaniam Devar to use their company name for the fraud, obviously for handsome remunerations. (3) Regarding the exports under the DEEC Scheme, the issue of evasion of excise duties due to diversion of goods under ARE-1 to local market has been dealt with, in a separate SCN. Since the export obligation for the duty free import of raw materials by M/s Surya Pharmaceuticals has not been fulfilled, they are liable to make good the duty foregone of Rs 48,83,442/- on these imported raw materials. The duty free imported raw materials were imported on execution of a bond for fulfillment of export obligation. Since the export obligation has not been fulfilled, these imported material are liable for confiscation u/s 111(0) of CA 62. The importer, M/s Surya Pharmaceuticals Ltd is also liable for penalty u/s 112(a) of CA 62. These imported goods valued at Rs 1.16.21.395/-, though not available for confiscation, can be confiscated as these were cleared under a bond and the conditions of the bond can be enforced for the purpose of imposing a fine in lieu of penalty. Judgement in the case of Western Comp....
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....es for value. are to be held liable for the duty payable. The person who himself is guilty of fraud can never be permitted to avail himself any benefit of it, ruled Hon'ble Supreme Court in the case of Fedco (P) Ltd. Vs S N Billigrami [1999(110) ELT 92(SC)]. SSEPL in their submission has stated that duty can be demanded u/s 28, only from the 'importer'. I do not agree with this contention as this Section allows the proper officer to demand duty from 'the person chargeable to duty'. The legislature has deliberately avoided using the term 'importer' and has left it open to the proper officer to decide as to who is the person chargeable to duty in the given case. The 'DEPB credit' was given to $SEPL and they have sold this credit for value in the open market. There are two ways one can utilize the credit obtained in a DEPB license. One can import the goods themselves and pay the Customs duty against the credit available to them or one can sell the DEPB Credit for value in the open market at a rate determined by market conditions. In this case, since it is conclusively held that what had been exported were not what was declared in the Shipping Bil....