2003 (10) TMI 220

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....EEC scheme. The said goods were cleared duty free under Notification No. 203/92-Cus., dated 19-5-1992 vide DEEC No. 133858, dated 4-4-1994 and the advance licence No. 0322441, dated 29-3-1994. They however sold away 236.722 M.Ts. out of the imported material to one M/s. Rasayano, Mumbai, even before the export obligation is fulfilled. The sale was done through their supporting manufacturer M/s. Gandhar Petrochemical Ltd. M/s. Gandhar Petrochemical Ltd. received full payment for this quantity from M/s. Rasayano, Mumbai. These facts were corroborated by various statements recorded. Such a sale of imported goods cleared under duty free advance licence, contravenes provision (vi) of Notification No. 203/92-Cus., dated 19-5-1992 as the sale of i....

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....ties under Section 111(d) and 111(o) of the Customs Act and no penalty under Section 112 of the same Act can be imposed. 4.The impugned order was challenged by the Department on the following grounds :-. (a)        The Commissioner should have held the goods liable to confiscation and in fact should have confiscated the goods under Section 111(o) inasmuch as the duty free goods had been sold in violation of conditions VI and VII of Notification No. 203/92-Cus. and the persons concerned should have been penalised under Section 112 of the Customs Act. (b)        The Commissioner's finding that the licensing authority is alone empowered to take action in cases where expor....

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....ny further arguments. The DR reiterated the contentions raised in the appeal memorandum. 6.Heard both sides. 7.The Revenue's case that the goods (236.722 M.Ts.) are liable to confiscation as they were sold away without fulfiling the export obligation and the persons concerned are liable to penal action is well covered by the ratio of Apex Court in M/s. Sheshank Sea Food's decision as cited supra. The Apex Court is categorical that the Customs Department has jurisdiction to take action against any violation of the provisions of Notification No. 203/92-Cus., dated 19-5-1992 irrespective of action proposed/taken by the licensing authority. Further the court held that the Customs Department is empowered to conduct investigation into the circu....