Customs, Excise and Gold Tribunal - Mumbai
Agarwal Exports vs Commissioner Of Customs, Kandla on 27 September, 2001
JUDGMENT Jyoti Balasundaram, Member (J)
1. For the reasons recorded below, we waive the pre-deposit of duty of Rs. 3,51,25,880/- confirmed against the appellants herein and penalty of equal amount imposed upon them and proceed to dispose of the appeal itself since the issue in dispute has been settled by the decision of the Tribunal in the case of J.K. Group of Industries v. Commissioner of Customs, Kandla vide final order No. CI/639-40/WZB/2001 dated 21.3.01.
2. The appellants herein have been denied the benefit of duty free clearance in terms of Notification No. 203/92 on the ground that they have availed input stage credit which is contrary to the condition laid down in Clause (v)(a) of the Notification mentioned above. It is the contention of the appellants that they are not the importers of the goods and, therefore, if there was any non levy or short levy of duty, that levy should be against the importers and not against the appellants herein.
3. We find that the Bills of Entry relevant to the present case which are before us show that M/s. Adani Exports (not the appellants) were the importers of the goods and the goods had been sold on high seas sale basis to M/s. Vijai Industries. Therefore, the contention of the appellants that they are not the importers is borne out from the records. This being so, the case law cited by the ld. counsel, in which it has been held that the importer is liable in the event of any short levy or non levy of duty and that mere possession of licence does not make the licence holder an importer, is applicable on all fours to the facts of the present case. Following the ratio of J.K. Group of Industries judgment cited supra, we hold that the order of the Commissioner demanding duty and imposing penalty upon the appellants requires to be set aside. We order accordingly. In the result, the appeal is allowed.
(Dictated in Court)