TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 493
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....eports, Directorate of Revenue Intelligence came to know that some importers were indulging in evasion of anti-dumping duty. On 21st June, 2008, premises of three importers Viz Neeru Trading Company, Ashok Enterprises and Nihal Trading Company were searched. 4. The proprietor of M/s Neeru Trading co. could not be located initially. Investigation with the CHAs and other connected persons indicated that the documents for clearances of consignments imported in the name of M/s Neeru Trading Co. were given by Shri Vineet Gupta, partner of M/s Achiever International. Further investigation revealed that all formalities like opening of accounts in the name of M/s Neeru Trading Co., obtaining IEC code in the name of Neeru Trading Co. and imports in the name of M/s Neeru Trading Co. were done only by Shri Vineet Gupta. The proprietor of M/s Neeru Trading Co. was subsequently, produced before the DRI officers who confirmed that the entire activity in the name of M/s Neeru Trading Co. were indeed undertaken only by Shri Vineet Gupta. Goods in six containers were seized for violation of sections 7 and 11 of the Foreign Trade (Development and Regulation) Act, 1992 (FTDR Act). A show cause notic....
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....d in the SCN to impose penalties under section 112 read with section 114A of the Customs Act. The SCN was made answerable to the jurisdictional Commissioners/ Additional/Joint Commissioners. By an order dated 28th September 2010, the Central Board of Excise and Customs appointed Commissioner (Adjudication), New Customs House, New Delhi as the common adjudicating authority to decide the proposals in the SCN in respect of all the imports. Accordingly, the impugned order was passed deciding the proposals in the SCN imposing penalty of Rs. 25,00,000/- on Shri Vineet Gupta under section 112 but not imposing any penalty on Shri Naveen Kumar. However, he did not order confiscation of the goods under section 111(d) of the Customs Act nor did he hold that the goods were liable to confiscation under section 111(d). The reasons given by the Commissioner in the impugned order are that the goods were not available for confiscation (because these were past consignments) and that the imported goods were not 'prohibited goods' or restricted goods. There was also mis-declaration of the quantity of the goods or value. The relevant portion of the order is reproduced below: "I do not find it appropr....
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....isted. However, since September 2022, the matter was again before this tribunal but the appellant was seeking adjournment or was either not appearing before the tribunal. Resultantly vide order dated 01.09.2023 a warning of last opportunity for making final submission was served upon the appellant. Several subsequent opportunities were also given to the appellant but appellant did not appear. Further opportunity was therefore declined vide order dated 03.3.2025 and the matter was proceeded to be dispose of on the merits on record, in view of decision of Hon'ble Supreme Court in the case of Balaji Steel Rerolling Mills Vs. Commissioner of Central Excise & Customs reported as 2014 (310) ELT 209, wherein it is held that appeal before Tribunal not to be dismissed in default but only on merits as the order under challenge and grounds of appeal are available to Tribunal for consideration and that no inherent power is vested with the Tribunal. Thus, the arguments on behalf of department heard. 9. We have heard learned Departmental Representative and perused the records of both appeals. Learned departmental representative submitted that the impugned order, in so far as it holds that the g....
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....detained / seized at the material time. The goods were allowed clearance on payment of appropriate Customs Duty. The adjudicating authority also held that the import of goods was neither prohibited nor restricted under any law. 11. It is further submitted that the provisions of Section 7 & 11 of FTDR 1992 prohibit import or export without Importer-Exporter Code Number or by any person against the provisions of FTDR Act 1992. In the instant case forged documents were submitted to Karnataka Bank to get accounts opened in the name of M/s Neeru Trading Co. & other fictitious firms. Apart from this, forged signatures of Shri Naveen Kumar & others who had been projected as the proprietors of various fictitious companies by Shri Vineet Gupta had been appended on various documents submitted on behalf of M/s Neeru Trading Co. & others by Shri Vineet Gupta only. It was on the basis of wrong information submitted to DGFT that Shri Vineet Gupta got successful in getting an IEC Code in the name of fictitious companies. The above referred IEC Numbers thus could not have any legal sanctity in the eyes of law having been obtained by practicing fraud on the government and are such as if there is n....
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....ame action. vi) The adjudicating authority imposed composite penalty under two different and separate acts which is bad in law. vii) The order was passed ex parte by the Commissioner without any personal hearing to the appellant. Therefore, there was gross violation of principles of natural justice. viii) The appellant gained no extra profit by importing using the IECs of other firms and could have imported the goods in his own name. ix) DVDs and CDRs are freely importable as per the EXIM policy and there is no restriction on their imports. x) Penalty of Rs. 25,00,000/- imposed on the appellant is unwarranted and it may be set aside. 15. Having heard the department and perusing the record of both the appeals we observe and hold as follows: 15.1 Earlier also a show cause notice bearing no. 50D/121 dated 25.02.2009 in respect of import of DVD collectively valued at Rs. 2,21,89,692 in five containers at ICD Ballabgarh and in one container at ICD Loni by M/s Neeru Trading company was served upon Shri Vineet Gupta partner of M/s Achiever International (the present appellant) and Shri Naveen Kumar proprietor of M/s Neeru Trading Company, proposing confiscation of the goods im....
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....ri Vineet Gupta was held to be the master mind behind the import of prohibited goods. Resultantly, the High Court had confirmed the confiscation however the option to pay redemption fine was given. The value of redemption fine however was enhanced to Rs. 80 lakhs. In addition, the appellant was imposed with the penalties under both the section of the Custom Act i.e. under section 112(a) and section 114 AA of the Act. 15.5 Since the present show cause notice has no different facts from the previous show cause notice viz-a-viz the intent of Shri Vineet Gupta and the modus operandi of the imports. Thus we hold that Shri Vineet Gupta has rightly been held as the 'Master Mind' behind creating fictious firms, getting bank accounts opened for these firms, Obtaining fake IECs and transacting the same business of importing electronics but illegally. The appellant has failed to make any submission or to produce any evidence in their support, rather has opted to remain absent. 15.6 The fact of obtaining IEC Code and opening of bank accounts has been admitted by him in his statutory statement recorded under Section 108 of the Customs Act, 1962 during the course of investigation by the office....
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....xport of goods under the Act or any other law for the time being in force, it would be considered to be prohibited goods; and (b) this would not include any such goods in respect of which the conditions, subject to which the goods are imported or exported, have been complied with. This would mean that if the conditions prescribed for import or export of goods are not complied with, it would be considered to be prohibited goods. This would also be clear from Section 11 which empowers the Central Government to prohibit either 'absolutely' or 'subject to such conditions' to be fulfilled before or after clearance, as may be specified in the notification, the import or export of the goods of any specified description. The notification can be issued for the purposes specified in sub-section (2). Hence, prohibition of importation or exportation could be subject to certain prescribed conditions to be fulfilled before or after clearance of goods. If conditions are not fulfilled, it may amount to prohibited goods." 15.8 We also observe that the provisions of Section 7 and 11 of FTDR, 1992 prohibit import or export without Importer-Exporter Code Number or by any person agains....
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....ods are not actually confiscated (if they are not available), if they are liable to confiscation under section 111, penalty can be imposed under section 112. The Commissioner imposed penalty on Shri Vineet Gupta under section 112. 15.12 As far as the grounds of appeal taken by M/s. Achiever International is concerned, we find that it does not deny that it had imported goods using the IEC in the names of other firms which is the explicit allegation in the SCN and the finding in the impugned order. This factual position is consistent with the SCN and the finding in the impugned order. In fact, in ground D, the appellant specifically states that other firms 'had lent' their IECs and it had imported the goods using those IECs. 15.13 Achiever International's submission is that since an SCN dated 25.2.2009 was earlier issued and in pursuance of the same investigation the second SCN dated 15.9.2010 was issued, it is hit by the principle of res judicata. We find that records show that the SCN dated 25.2.2009 was in respect of the goods which were seized, this SCN deals with the past imports. Thus, there is no overlap between the two. We do not find that the matter is hit by res judicata.....