M/S. Avinash International vs C.C. New Delhi (Icd Tkd)

[Arising out of Order-in-Appeal No. CC(A)/CUS/D-II/ICD/446/2015 dated 27.04.2015 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), New Delhi].

For approval and signature:

Honble Shri Ashok Jindal, Member (Judicial)

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

2 Whether it should 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 Departmental authorities?

M/s. Avinash International .Appellants

Vs.

C.C. New Delhi (ICD TKD) .Respondent

Appearance:

Shri Vaibhav Singh, Advocate for the Appellant

Shri M.S. Negi, DR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 27.08.2015

FINAL ORDER NO. 52695/2015-CU(SM)

Per Ashok Jindal:

The appellant is in appeal against the impugned order imposing penalty of Rs.7.5 lakhs on them under section 112 of the Customs Act, 1962.

2. The facts of the case are that one consignment of old and worn clothes weighing 25404 kg arrived at ICD Tkd New Delhi on 06.06.2011. No one filed the Bill of Entry for clearance of the said container. On enquiry it was revealed that the said container has been imported in the name of appellant. Therefore, the show cause notice was issued to the appellant for confiscation of the impugned goods as same are restricted goods and the appellant did not turn up for hearing and on the basis of the information received from shipping line as well as from the bankers the goods were absolutely confiscated and penalty of Rs.7.5 Lakh was imposed on the appellant. Aggrieved from the said order appellant is before me.

3. The Ld. Counsel for the appellant submits that the container arrived on 06.06.2011 and it was lying unclaimed and show cause notice was issued to the appellant only on 28.10.2013 whereas appellant came to know from the bankers that some container of old and used clothes have arrived and immediately appellant asked their banker not to make any payment on their behalf as they are not the owner of the said goods. Thereafter, a show cause notice was issued in 2013 is not required to be issued to the appellant as they are not the owner of the imported goods. Moreover, neither they own the goods nor they filed any Bill of Entry. Therefore, the show cause notice was not required to be issued. In these circumstances, he prayed that penalty imposed on the appellant be set aside. To support his contention he relied on the decision in the case of Nalin Z. Mehta Vs. CC Ahmedabad-2014 (303) ELT 267 (Tri-Amd) and in the case of Chemworld Inc. Vs. CC Nhava Sheva-2014 (305) ELT 153 (Tri-Mumbai).

4. On the other hand, Ld. AR supported the impugned order and submits that as per the documents available with the shipping line the goods were imported in the name of the appellant. The said fact has been confirmed by the banker of the appellant that documents for clearance of the said goods arrived in the name of the appellant. He also submits that the appellant never chose to appear before the authorities below to disown the goods. In these circumstances, penalty imposed on the appellant by the Adjudicating authority is as per law.

5. Heard the parties. Considered the submission.

6. In this case the container arrived at ICD TKD New Delhi on 06.06.2011 and remained unclaimed. On enquiry it was found that documents of the said container are in the name of the appellant but appellant has disowned the ownership of the said container. As per section 2(26) of the Customs Act 1962 the importer is a person who cleared the goods for home consumption or claims to be owner of the said goods. Admittedly, in this case the appellant has not cleared the goods for home consumption or not claimed to be the owner of the said goods. Under the said circumstances, the observation of the lower authorities that appellant is the owner of the said goods or the importer of the said goods is not tenable. Revenue has also not brought out on record any corroborative evidence to say that whether appellant is the regular importer from the same supplier of the goods or appellant is importing old and worn clothes. In these circumstances, benefit of doubt goes in favour of the appellant. Therefore, I hold that in this case imposition of penalty on the appellant is not warranted.

7. Therefore, impugned order qua imposing penalty on the appellant is set aside. Appeal is allowed in these terms.

(Dictated and pronounced in the open court)

(Ashok Jindal) Member (Judicial)

Bhanu

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C/52282/2015-CU(SM)