TaxTMI 
TaxTMI 
2022 (12) TMI 485
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....dated 31.08.2004. The consignment had been cleared only on payment of 1% Special Additional Duty (SAD) of Customs. Enquiry was initiated against M/s Damasy Retail Jewellery Pvt. Ltd, who had imported 07 consignments of studded gold jewellery from Thailand and cleared the same through Precious Cargo Customs Clearance Centre (PCCCC), Mumbai by availing the duty exemption benefit of the Notification No.85/2004-Cus. dated 31.08.2004 and consequent evasion of Custom Duty amounting to Rs.26,12,902/- which culminated into issuance of a Show Cause Notice dated 20.05.2014 to the importer i.e. the Company and its four (4) Directors including the Appellant herein and subsequently Adjudicated vide Order-in-Original No. ADC/DG/AP-SC/08/2014-15 dated 31.03.2015. The Adjudicating Authority denied the duty exemption benefit and confirmed the differential duty of Rs.26,12,902/- with interest and imposed a penalty of Rs.26,12,902/- along with interest under Section 114A on M/s Damasy Retail Jewellery Pvt. Ltd. and penalty of Rs.16,00,000/- under Section 114AA, 112(a) & 112(b) on Shri Mohammed Irfan Abdul K. Munshi i.e. the Appellant herein being one of the Directors of M/s. Damasy Retail at the time....
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....lty under which provision and in support of his submission, learned counsel placed reliance on the decisions of this Tribunal in the matter of Benzo Chem Industries (P)Ltd. vs. CCE, Jalgaon; 2007(216) ELT 94 (Tri-Mum) and CC(Preventive), Mumbai vs. Ramesh A. Bachani & Ors.; 2000 (93) ECR 375 (Tribunal). According to learned counsel conscious knowledge was also not proved by the department anywhere. One more submission was raised by learned counsel about inordinate delay in passing the order by the 1st Appellate Authority i.e. the Commissioner (Appeals). According to him, learned Commissioner concluded the hearing on 11.1.2018 but the impugned order was passed much belatedly on 29.3.2019 which, according to learned counsel, is against the mandate of expeditious disposal as per by Circular No. 732/48/2003-CX dated 5.8.2003 and also Section 128(4A) of the Customs Act, 1962. Per contra learned Authorised Representative appearing for Revenue submitted that the Bill of entry in issue is of dated 23.3.2009, which is well during the tenure of the appellant in the company and in the said consignment the value addition was ascertained at 16.15% as against declared 22%, therefore it's a clear....
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....n was submitted in the Registrar of Companies on 31.03.2009. Legally he was a director of the company till 31.03.2009 and till this date he was the director and in charge of India operation of this company as per his own admission in his statement. The import of the said 7 impugned consignments of studded gold jewellery was started from 23.03.2009. During this period Shri Mohammed Irfan Abul karim Munshi was the Director and head of India operation of M/s Damasy Retail Jewellery Pvt. Ltd, Mumbai. Being head of the operation of India, he must have experience in the field of studded gold jewellery and he must have been aware of the condition of mimimum local value addition of 20% for the purpose of exemption from Custom Duty on the import of jewellery under FTA from Thailand. Hence, I conclude that, Shri Mohammed Irfan Abul karim Munshi was fully aware that in case of B/E no. 100617 dated 23.03.09 local value addition was 16.15 as elaborated at para 1.12 above and that the value addition of more than 20% had not been achieved but deliberately suppressed this fact and thus unduly claimed the exemption under Notification No. 85/2004 and exploited the Interim Rules of Origin issued vide....
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....rd. In my view no one can be penalised merely on the basis of speculations/doubt. I am also conscious of the provisions of Section 140 ibid, which has been heavily relied upon by the learned Authorised Representative in his submissions although that has not been invoked by any of the authorities below. The said section 140 covers the sections contained in Chapter XVI which consists of sections 132 to 140A. As per learned counsel in a way section 135(1)(b) which falls in that chapter, covers the cases falling u/s.112(b) and since the impugned order is bereft of any reasoning and/or finding qua knowledge and/or illegal gain to the Appellant from the one bill of entry in issue, therefore the penalty is liable to be set aside. 6. Generally a private limited company consists of Managing Director, Directors and other officers who have been appointed or authorised to act for and on behalf of the company and therefore the question arises how the department has chosen only the appellant for one single bill of entry of 23.3.2009 without assigning any role to him and without mentioning anywhere or without recording anywhere that the appellant was the only person concerned at the relevant tim....
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....ries (P)Ltd. (supra) and Ramesh A. Bachani (surpa). It is settled law that such combined penalty is not in accordance with the provisions of law and in the absence of exact amount of penalty attributable against the relevant provisions, the penalty imposed on the appellant is liable to be set aside. In this regard reliance is placed on the following paragraph from the Tribunal's Order No.A/798 & 799/WZB/Ah'bad/07 dated 13.4.2007 in the matter of Gujrat Apar Polymers, which discusses the law on this issue: "3. After considering the submissions made by both sides and after having gone through the various relied upon judgments, I find that Tribunal in case of Singam Mark & Co. v. CCE Salem as reported in 2005 (189) E.L.T. 111 (Tri.-Chennai), has held that composite penalty under two different provisions of law can not be accepted without the requisite split up. Similarly, in case of Avdel (India) Private Ltd v CCE Mumbai reported in 2004 (171) E.L.T. 201 (Tri-Mumbai), Tribunal set aside the personal penalty on the ground that a composite penalty under Section 11AC and Rule 173Q is not permissible. In case of Lauls Ltd. v CCE, New Delhi reported in 2003 (158) E.L.T. 711 (Tri.-Del.), ....