AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (7) TMI 1070
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....lls of Entry for import of 500 kgs of gold. It was alleged that the importer has filed five in-bond Bills of Entry and cleared 400 kgs of gold on payment of appropriate duty in terms of RBI circulars dated 14.08.2013, which provides a scheme of minimum of 20% of the imported gold was required to be exclusively made available for exports. 3.1 The remaining 100 kgs of gold was allowed to be cleared without payment of duty under Notification No.56/2000-Cus dated 05.05.2000. 500 kgs of imported gold was warehoused on Importer's private bonded warehouse, in which, the Appellant No.(3) has provided a "Bin". The Appellant No.(3) provided service of safe delivery of the gold to the importer and store in the Bin provided by the Appellant No.(3) in the private bonded warehouse of the importer. 3.2 The Appellant Nos.(1) & (2) are the Customs Brokers. The importer filed Bills of Entry through the Appellant No.(2) in accordance with the prescribed procedure, the jurisdictional Customs Authorities allowed Into-Bond warehousing of the said consignments, whereupon the Appellant No.(2) warehoused the consignments in Customs Bonded Warehouse, on behalf of the importer....
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....hat the show-cause notice does not disclose the details of any contravention or infraction of the provisions of the Act by the Appellants and being vague thereunder including the impugned order, untenable and unsustainable. To support, he relied on the following case laws : (i) Commissioner of Central Excise Vs. Brindavan Beverages (P) Ltd. : 2007 (213) ELT 487 (SC) ; (ii) Delta International Limited Vs. Commissioner of Customs : 2012 (281) ELT 400 (Cal.) ; (iii) Shilpi Enterprises Vs. Commissioner of Central Excise : 2017 (349) ELT 308 (T). 4.1 He further submitted that the allegation against the Appellants have been invented to arbitrarily, unreasonably and in a perverse manner, penalty has been imposed on the appellant. There is no such allegation against the appellant in the show-cause notice. Therefore, the adjudicating authority has travelled beyond the show-cause notice to impose penalty on the appellant. 4.2 He further submitted that Section 112 (a) of the Act, provides that any person who, in relation to any goods, does or omits to do any act, liable for confiscation under Section 111 of the Act or abets the doing or omissi....
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....bsp;Department (Respondent herein) themselves allowed clearance of 400 kgs of gold for home consumption for payment of duty and it was known to the Department of RBI and CBIC Circular on this issue. Therefore, the appellant was never involved in any manner in clearance of 400 kgs of gold allowed to be cleared on payment of duty by the Department. In any event, the gold was deposited in the private warehouse of the importer and the importer was responsible for clearance of the gold and compliance of Customs Act. 5.1 He further submitted that it was almost after five years after permitting clearance of 400 kgs of gold for home consumption on payment of duty and the Department issued show-cause notice alleging that the importer was not entitled to benefit of 80:20 Scheme as the importer was Premier Trading House and it could not have imported for itself and claim benefit of 80:20 Scheme. It means that there was no illicit removal of 400 kgs of gold, which was allowed for home consumption after proper assessment. Therefore, the gold cannot be liable for confiscation as it was allowed without any condition. It is his con....
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....ive in-bond Bills of Entry were filed for initial storage of gold in the private bonded warehouse of the importer and was later allowed for home consumption against Bond and Bank Guarantee. There was neither clandestine nor illicit removal of 100 kgs of gold. He submitted that the Customs Broker, to whom the delivery of the gold was given by the appellant, was engaged by the importer and the charge of Customs Brokers was paid by the appellant, which were reimbursed by the importer. It is his submission that the appellant did not deal with the gold in any manner, which rendered the gold liable for confiscation. In fact, no alleged act or omission on the part of the appellant could have rendered the 100 kgs gold liable for confiscation as it was allowed to be cleared for home consumption by the Department by extending the exemption. 5.6 He further submitted that the adjudication of the show-cause notice is contrary to Section 28(9) of the Act. Admittedly, the impugned order was passed beyond six months. Section 28 (4) of the Act is not applicable in the facts and circumstances of this case and at best, Section 28(1) can only appl....
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....ispute. In these set of facts, there is no role of the Appellant No.(1) & (2) to allege that they have made gold liable for confiscation for non-fulfillment of export obligation by the importer. 10. Therefore, penalties on the Appellant Nos.(1) & (2) cannot be imposed under Section 112 of the Customs Act, 1962. 11. With regard to Appellant No.(3), the duty of the Appellant No.(3) is to safe custody of the imported gold, which is a private bonded warehouse of the importer and while assessing the Bills of Entry for ex-bond warehouse, the goods were allowed to be stored in the Bin provided by the appellant for safe custody of the gold. Thereafter, the Appellant No.(3) has handed over 400 kgs of gold on duty paying documents by Appellant No.(1) i.e. not in dispute. 12. With regard to 100 kgs of gold, clarification has been given on 27.09.2013, which provides clearance of gold to exporters on internal documents of nominated agencies, which is as under : "Clearance of gold to exporters on internal documents of nominated agencies : Representations have been received from stakeholders regarding difficulties to nominated agencies regarding filing of ex-bon....