Dileep K Gupta vs Cc-New Delhi (Icd, Tkd)

Pronounced on: 28.09.2015

Appeal No. C/51106 AND 51513/2015-CU[SM]

[Arising out of order-in-appeal no. CC(A)CUS/594 to 596/2014 dated 24.11.2014 passed by Commissioner of Customs (Appeals) New Delhi]

For Approval and Signature:

Honble Smt. Sulekha Beevi C.S., Member (Judicial)

1. Whether Press Reporter may be allowed to see the Order for Publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of the order?

4. Whether order is to be circulated to the Department Authorities?

Murari Lal Harish Chandra

Jaiswal PVt. Ltd. and

Dileep K Gupta Appellants

Vs.

CC-New Delhi (ICD, TKD) Respondents

Appearance: Shri Prabhat Kumar, Advocate for the appellant.

Shri M.R. Sharma, DR for the respondent

Coram: Honble Smt. Sulekha Beevi C.S., Member (Judicial)

Final Order No. 52985-52986/2015

Per: Sulekha Beevi C.S.

The issue involved in both the above appeals being the same were heard together and are disposed by this common order. At the time of hearing, the ld. Counsel for the appellants submitted that he was confining his arguments to the issue of penalty imposed on the appellants.

2. The brief facts of the case are that Shri Dileep Kumar Gupta is the proprietor of M/s. Shiva Enterprises and the firm purchased a consignment of Hans Brand Tobacco comprising 17500 packets from M/s. Murari Lal Harish Chandra (manufacturer). Shri Dileep Kumar Gupta entered the goods for export to Malaysia vide shipping bill dated 9/7/2013. The consignment was examined by the Customs Authorities at ICD, Patparganj and on examination, the goods were found to be packed in pouches which contained plastic material in the inner layer of the pouches. The goods were seized and confiscated as the use of plastic material in the packings of Tobacco products are prohibited under the Plastic Waste (Management and Handling) Rules, 2011 and CBEC instruction F. No. 528/69/2011-STO(TU) dated 30/08/2011.

3. The ld. Counsel for the appellant submitted that Shri Dileep Kuma Gupta has deposed that the impugned pouches were used for packings of the goods only as an emergency measure keeping in view of the urgency of the export order. The manufacturer was not having the stock of paper pouches and there would be delay in obtaining such paper pouches. The time lag would result in cancellation of export order. In order to honour the export order the appellant made an earnest request to the manufacturer to utilize whatever pouches were available including the dumped lot which was unusable because of the inner plastic lining. The whole idea was only to honour the export order. Further that appellant was under bonafide belief that the use of plastic material was banned only in India and not for export consignments. The pouches contained only inner lining of plastic; that the appellant has never exported goods packed in plastic packing material after this and has stopped use of plastic material packing even for export after coming to know of the ban of use of plastic packaging material. Only due to the emergency situation, he was compelled to export the goods packed in dumped packing material. The pouches are not made wholly of plastic material.

4. Ld. DR reiterated the findings in the impugned order and supported that the penalty imposed is reasonable. By the impugned order the penalty of Rs. 5 lakhs imposed on Shri Dileep Kumar Gupta and Rs. 3 lakhs imposed on M/s. Murari Lal Harish Chandra was upheld by the Commissioner (Appeals).

5. Heard both the sides. The goods with declared FOB of Rs. 17,08,875/- was seized and absolutely confiscated. The appellant has stated that such pouches were used only because of the urgency in the export order and that was under bonafide belief that the prohibition did not apply for export. It is also submitted by the counsel for the appellant that their request to re-pack the pouches and permit them to re-export was denied. The goods have been fully confiscated. In such score, the penalty appears to be on the higher side. If the penalty imposed on Shri Dileep Kumar Gupta is reduced to Rs. 2 lakhs and the penalty imposed on Shri Murari Lal Harish Chandra is reduced to Rs. 1 lakh, it would be adequate to meet the ends of justice.

6. The impugned order is modified to the extent of reducing the penalty imposed on Shri Dileep Kumar Gupta to Rs. 2 lakhs and penalty imposed on Shri Murari Lal Harish Chandra to Rs. 1 lakh. The appeals are partly allowed, in the above terms.

(Pronounced in the open court on 28.09.2015)

(Sulekha Beevi C.S.)

Member (Judicial)

Ritu

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