Customs, Excise and Gold Tribunal - Delhi
Ratinder Pal Singh Bhatia vs Commissioner Of Customs on 4 July, 2005
Equivalent citations: 2005(190)ELT43(TRI-DEL)
ORDER P.S. Bajaj, Member (J)
1. The above captioned appeals have been directed against the common Order-in-Original and are as such being disposed of by this common order.
2. The facts, as borne out from the record, are that Shri Pankaj Soni, proprietor of M/s. Harikishan Overseas exported 52,000 pieces of CD ROMs under DEPB License. He, however, transferred two licenses of those to two companies known as M/s. Volvo India (P) Ltd. and M/s. G.G. Photo Ltd. for the import of other items. However, 27,000 pieces of CD ROMs were imported by M/s. Arvind International, a partnership concern of Ratinder Pal Singh and Pankaj Soni.
3. On account of over-invoicing of the exported goods, the DEPB Licenses were ultimately cancelled on 8-11-99. After issuing the show cause notice to the appellants, the adjudicating authority had confirmed the duty demand on M/s. Harikishan Overseas, proprietor concern of Pankaj Soni and also imposed penalties under Sections 114 and 112 of the Act on Pankaj Soni. Similarly, the penalties under both these Sections had been confirmed against Ratinder Pal Singh, being the financer of the exporter as well as the importers.
4. We have heard both the sides and gone through the records.
5. So far as confirmation of duty against M/s. Harikishan Overseas is concerned, the contention of the Counsel that it could not be done legally, in our view, deserves to be accepted. The duty, as per law, could be confirmed against the importers of the goods i.e. M/s. Volvo India (P) Ltd. and G.G. Photo Ltd. The duty against both these companies, who were made the noticees along with the appellants in the show cause notice, had been wrongly dropped by the adjudicating authority. In this context, reference may be made to the law laid down by the Tribunal in K. Sons Overseas (I) P. Ltd. v. C.C., Mumbai reported in 2001 (132) E.L.T. 93 and Jupiter Exports v. C.C. (Genl.), Mumbai reported in 2001 (131) E.L.T. 147 wherein it has been observed that in case of transfer of licences, the duty can be claimed on the imported goods, from the importer and not the exporter, who obtained the license initially.
6. The learned Counsel has also submitted that at the time of export as well as import of the goods, the licenses were valid and the cancellation of the licenses could not be given retrospective effect and as such no penalty under Sections 114 and 112 could be imposed on the appellants. He has referred, in this context, the Apex Court judgment in the case of Union of India v. Sampat Raj Dugar . But we are unable to accept his contention. From the record, we find that the DEPB Licenses were cancelled on the ground of over-invoicing of the exported goods. We do not find sufficient ground to disagree with these findings of the adjudicating authority. The penalties had been rightly imposed on the appellants, Pankaj Soni and Ratinder Pal Singh. However, keeping in view the facts and circumstances of the case, the total penalty on Pankaj Soni is reduced to rupees 1.5 lakh while on Ratinder Pal Singh rupees 3 lakhs under Sections 114 and 112 of the Act. The amounts, already deposited by them, shall be adjusted towards these penalties.
7. In the light of discussion made above, the impugned order stands accordingly modified. The appeals of the appellants also stands disposed of with consequential if relief as per law.