TaxTMI 
TaxTMI 
2026 (7) TMI 477
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....g the penalty on Chairman and Managing Director despite having upheld the acts of commission and omissions on their part? (2) Whether in the facts and circumstances of the present case, the Tribunal was justified in setting aside the penalty on the officers of the company, namely, Mr. B.L. Dhaluka and Mr. Dinesh Thakur, despite upholding their indulgence in malpractice?" 4. There were twenty four Appeals being Appeal No. C/389-400, 417-420 and 456-463/01-NB(A) filed by the respondents arising out of the six orders-in-original before the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for short 'the Tribunal'). The common issue involved in all the Appeals filed before the Tribunal was whether penalties under the provisions of Sections 112 and 114 of the Customs Act, 1962 (for short 'the Act') are imposable or not. The Tribunal, vide its common judgment and order dated 13th April, 2005 passed in the aforesaid twenty four appeals, has recorded the brief facts of the case in paragraph Nos. 2.1 to 2.6 as under : "2.1. Briefly stated the facts in different appeals are as under M/s. Ganapati Combines Ltd. filed 6 shipping bills for export of plastic wov....
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....alty of equivalent amount on the company (c) Imposed penalties as under" i. O.P. Agarwal Rs. 2 crore: ii. B. K. Karnawat Rs. 50 lakhs iii. Dinesh Thakur Rs. 50 lakhs iv. B. L. Dhaluka Rs. 50 lakhs (Appeal Nos. C/417-420/01-A) 2.4. M/s. Ganapati Exports Ltd. filled 11 shipping bills for export of plastic woven sacks for export of Russia toward fulfillment of export obligation under DEEC Scheme against 4 advance licences which stipulated export of General Currency Area. The commissioner has held the export to Russia can not be considered as fulfillment of export obligation against the licence as the conditions of the licences has not been complied with. The Commissioner has also held the sacks were very much overvalued and determined the value of sacks as Rs. 6/- per sack. The Commissioner under Order-in-Original No. 7/2001 dated 17.1.2001 has (a) Confiscated sacks valued at Rs. 23.33 crores already exported and since the goods are not available for confiscation, imposed a penalty of Rs.2.5 crores on the company (b) Confiscated sacks valued at Rs. 7.53 crores attempted to be exported with an option to redeem the same on p....
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....erving as under: "6. We have considered the submissions of both the sides. The learned Senior Departmental Representative has clearly shown that the copies of the relied upon documents were supplied to the Appellants by referring to the acknowledgments given by them while receiving the copies of the show cause notice and by bringing on records the letters addressed by the Counsel and Marketing Executive. We also do not find any force in the submissions of the learned Advocate that impugned orders had been passed without hearing them. The Adjudicating Authority has sent the intimation about fixing the date for personal hearing which had been received back with the endorsement of postal authorities 'left'. The Appellants have not rebutted these findings by bringing any material or record such as any enquiry with the Postal Department or protest lodged by them with the said Department about making the endorsement left' on the letters sent by the Department. There is no basis in the contention that the address might have been wrongly written or there might be some other infirmity in the despatch. We, therefore, hold that the impugned orders have not been passed in ....
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....ryavan, Assistant General Manager of Ganapati Exports Ltd, that the export work was done as per direction of Calcutta office where all the Appellants are based. The Chairman and managing director of a company deal with the policy matters and these imports and exports of such a magnitude and diversion of imported goods into domestic market and over valuation of the export goods are the acts of commission which have to be taken by the senior functionaries of the Company. No reasonbale/prudent man can say that such an act of commission will be done by a lower functionary without the direction of Chairman/Managing Director. Once the Adjudicating Authority has discussed the liability to penalty in the impugned orders, the penalties are imposable on Chairman and Managing Director even if there is no separate mention of them in Order in Original Nos. 3/2001, 7/2001 and 8/2001. We, therefore, hold that penalites are imposable on Shri O. P. Agarwal and Shri B. K. Karnawat. The decision in the case of Steel Co. Gujarat Ltd. vs CCE (2000 (121) ELT 747) relied upon by the learned Advocate in support of contention that penalty can not be imposed in general terms, is not applicable to the facts ....
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....ties are imposable on Shri O.P. Agarwal and Shri B.K. Karnawat by invoking provisions of Section 114 of the Act, which reads as under : "114. Penalty for attempt to export goods improperly, etc.- Any person who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 113, or abets the doing or omission of such an act, shall be liable,- (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty [not exceeding three times the value of the goods as declared by the exporter or the value as determined under this Act], whichever is the greater; (ii) in the case of dutiable goods, other than prohibited goods, to a penalty [not exceeding the duty sought to be evaded or five thousand rupees, whichever is the greater; (iii) in the case of any other goods, to a penalty not exceeding the value of the goods, as declared by the exporter or the value as determined under this Act, whichever is the greater." 7. On perusal of the above provisions, it is clear that the Tribunal has exerc....