TaxTMI 
TaxTMI 
2023 (8) TMI 423
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....hat some importers were indulging in illegal import of worn clothing (import of which is restricted in terms of the Foreign Trade Policy), electronic goods and electrical goods by mis-declaring them as "Assorted Printed Books" with a view to evade payment of appropriate customs duty. The appellant herein has been issued notice in the capacity of an 'importer'. The appellant participated in the proceedings only after issuance of "Red Alert" by the DRI. As per the statement recorded under Section 108 of the Customs Act, it appears that appellant did not have any company of his own nor did he had IEC number and therefore the appellant imported the goods in the name of fictitious firms and payments were made through hawala transactions. 3. The show cause notice was adjudicated by the Principal Commissioner, Customs and vide order dated 27.05.2022 the show cause notice was affirmed with respect to all the 51 noticees. The relevant conclusion in so far as the appellant is concerned is quoted below:- "(D) IN RESPECT OF M/S OM SALES CORPORATION, M/S A.P. ENTERPRISES, M/S S. K. IMPEX, M/S SATNAM INTERNATIONAL, M/S M.M. ENTERPRISES, M/S NAGI INTERNATIONAL, M/S SHIVALIK INTERNATION....
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....tnam International 16,00,000/- M/s M. M. Enterprises 30,00,000/- M/s Nagi International 14,00,000/- M/s Shivalik International 20,00,000/- Sh. Mohit Chadha 1,00,00,000/- 4. The short question that we are called upon to consider at this stage is whether the liability to pay the duty amount and penalty, which has been fastened by the adjudicating authority 'jointly and severally' on eight noticees can be divided into individual liability for the purpose of making the pre-deposit under section 129E of the Customs Act to enable the appellant to seek consideration of the present appeal? 5. We have heard both the parties and perused the case records. 6. Before proceeding to consider the issue, we need to take note of the previous orders passed by this Bench. On 29.09.2022 when the appeal was listed, the learned Counsel sought time to make the pre-deposit. Again on 02.12.2022, on the request of the learned Counsel, time was granted to enable the appellant to make the pre-deposit. The appellant then changed the Counsel and therefore on 07.02.2023, the learned Counsel for the appellant sought time. On the next date of hearing on 13.03.2023, the learned Counsel took anoth....
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....ven other firms as jointly & severally. From discussion (discussion on defense submitted by Shri Mohit Chadha, Noticee No. 18) at para 77 of the OIO, it transpires that Shri Mohit Chadha has submitted to have imported 10 consignments of electric goods through Sh. Vijay Sagar and Sh. Gaurav Gupta in the name of fictitious firms provided by them and payment of consignment was through hawala channel. It appears that he was the mastermind behind import made through fictitious firms against whom the penalty under section 114A has been imposed jointly & severally along with other terms. As other firms are fictitious and they have not gone in appeal, as per the office records, therefore, the whole amount of penalty should be treated to Shri Mohit Chadha and accordingly pre-deposit amount be determined. Thus, the amount of pre-deposit comes to Rs.31,69,850/- (as 7.5% of Rs. 4,22,64,713/-). This is for your information and further necessary action. This issues with the approval of Pr. Commissioner of Customs, Import, ICD, TKD, New Delhi. Sd/- Assistant Commissioner (Adjudication)" From the earlier orders passed in the present appeal, it is evident that the appellant has been adopting ....
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....ll not entertain any appeal,- (i) under sub-section (1) of section 128, unless the appellant has deposited seven and a half per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of a decision or an order passed by an officer of customs lower in rank than the Commissioner of Customs; (ii) against the decision or order referred to in clause (a) of sub-section (1) of section 129A, unless the appellant has deposited seven and a half per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against; (iii) against the decision or order referred to in clause (b) of sub-section (1) of section 129A, unless the appellant has deposited ten per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against: Provided that the amount required to be deposited under this section shall not exceed rupees ten crores: Provided further that the provisions of this section shall not apply to the....