Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Customs, Mumbai vs M/S. Amichand Shantilal & Co., M/S. ... on 21 February, 2001
Equivalent citations: 2001(132)ELT208(TRI-MUMBAI)
ORDER J.H. Joglekar, Member (T)
1. These four appeals filed by the Revenue arise out of the same order and are therefore disposed of together vide this single order. These appeals were argued by Shri AK Jain for the Revenue. The respondents were represented by Shri ML Grover Advocate and Shri HR Shetty Advocate.
2. M/s. Amichand Shantilal and Co. had imported 49.5 MTS of HDPE. They sold the goods on high sea sale basis to M/s. Relaxo Plastic through one Shri Rajesh Desai a broker. Shri Rajesh Damani was a partner of M/s. Amichand Shantilal & Co. The CHA filed the bills of entry and produced certain advance licences for clearance of the goods without payment of duty. However, before the goods were so cleared, the Customs found out that M/s. Relaxo Plastics was a non existent company and that the licences were forged. M/s. Amichand Shantilal & Co., the original importers, thereafter requested for clearance of the goods on payment of duty. At the material time the goods were permissible on OGL. The Department held that M/s. Relaxo Plastics having filed Bills of Entry were importers and that the first importers ceased to be importers after the high sea sale contract. The Collector of Customs did not uphold this presumption. He permitted clearance of the gods by M/s. Amichand Shantilal & Company on payment of appropriate duty. Against this order the present appeals are filed. The common prayer made is that this order should be set aside, that goods should be confiscated absolutely and suitable penalties imposed upon the respondents.
3. During the arguments it appeared that along with the imports made by M/s. Amichand Shantilal & Co., similar goods were imported by M/s. Corporation totaling about 200 MTs. The goods were also sold on high sea sale basis to M/s. Relaxo Plastics. Thereafter the chain of event was the same as has been narrated above. In his order in adjudication in that case also, the same Collector of Customs had permitted M/s. MD Corporation to clear the goods on payment of duty. Similar appeals were filed by the Revenue against that order also.
4. These appeals were disposed of by the Tribunal vide their order reported in [2001 (127) ELT 270 (Tri-Mum.)] The facts as narrated above have been recounted in paragraph 1 to 4 of that order. In their order the Tribunal held as follows:
"We are however not concerned with this section. We are concerned with the liability to confiscation of the goods and liability to penalty by Bhura, M.D.Corporation and others. Confiscation of the goods under clause (d) of Section 111 is clearly not possible. If the goods could be imported by any person under the provisions of the Open General Licence, it cannot be said that their importation was unauthorised. The importer in this case was, and continued to be M.D. Corporation. This is so far the reason that there is no entity named Relaxo Plastics. Therefore the amendment showing the importer as Relaxo Plastics is in effect nonest. The Commissioner's action in recognising these facts therefore is not open to question.
The department's appears to be an attempt to say that Uttam Bhura and MD Corporation should be punished for that their acts in attempting to take credit on the forged licence and clear the goods. There being nothing in liability to confiscate the goods penalty cannot be imposed on Bhura and M.D. Corporation for this reason. The provisions of Section 112 of the Act cannot be intently invoked in this case to impose penalty on them. Clause (a) of Section 112 clearly would not apply since the goods are not liable to confiscation. Accordingly clause (b) will also apply.
The appeal proposed penalty on the broker for "illegal trading for non-transferable advance licence which is not permitted under the import Policy and in the DEEC Notification condition". It is not the function of the Customs department to enforce contravention of the import policy per se. The eligibility to the notification does not arise for the reason that it had not been claimed. There is therefore no case for penalty on any of the brokers. This conclusion is on the assumption that they were given notice for penalty which does not appear to be fully justified.
The appeals are dismissed".
5. The facts being the same, I follow the order of the two Member Bench and dismiss the appeals filed by the department, where the respondents are M/s. Amichand Shantilal & Co., Shri Rajesh Damani and Shri Rajesh Desai. Since it is the claim of the Customs that M/s. Relaxo Plastics did not exist the question of grant of prayer of imposition of penalty upon them does not arise. Therefore the appeal filed by the revenue where M/s.Relaxo Plastics are the respondent is also dismissed.
(Pronounced in Court)