Shri Narayanan Nair Ajay Kumar vs Commissioner Of Customs, Kandla

Appeal No.C/412/2007; C/81/2008 [Arising out of OIO No.06/COMMR/KDL/DRAWBACK/2007, dt.31.08.07, passed by Commissioner of Customs, Kandla]

1. Shri Narayanan Nair Ajay Kumar 2. Shri Harjit Singh Grewal Appellants

Vs

Commissioner of Customs, Kandla Respondent

Represented by:

For Appellant: Shri P.P. Jadeja, Consultant (for Appellant No.1 only) For Respondent: Shri Jitendra Nair, Authorised Representative

For approval and signature:

Honble Mr. P.K. Das, Member (Judicial) Honble Mr. P.M. Saleem, Member (Technical)

1. Whether Press Reporters may be allowed to see the No 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 No in any authoritative report or not?

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

4. Whether order is to be circulated to the Departmental Yes authorities?

CORAM:

HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) HONBLE MR. P.M. SALEEM, MEMBER (TECHNICAL)

Date of Hearing/Decision: 10.08.2015

Order No.A/11189-11190/2015, dt.10.08.2015

Per: P.K. Das

These appeals are arising out of a common order, and therefore, both are taken up together for disposal. Shri Narayanan Nair Ajay Kumar, Director of M/s. Unique Shipping Services Ltd. (CHA) and Shri Harjit Singh Grewal, Partner of M/s Shivam Overseas filed these appeals against imposition of penalty of Rs. 5,00,000.00 on each under Section 114 (i) of the Customs Act, 1962.

2. The learned Consultant appears on behalf of Shri Narayanan Nair Ajay Kumar. There is no application for adjournment on behalf of Shri Harjit Singh Grewal. Hence, we proceed to take up both the appeals for disposal.

3. After hearing both the sides and on perusal of the records, we find that it is a second round of litigation. By Final Order No.112-114/2007, dt.11.04.2007, the Tribunal remanded the matter to the Adjudicating authority, to decide in de-novo proceedings. The learned Authorised Representative on behalf of the Revenue submits that the Tribunal by Final Order No.A/136/WZB/AHD/2009, dt.09.01.2009, dismissed the appeal filed by the main Appellant (M/s Shivam Overseas) for non-compliance of the stay order.

4. The learned Consultant submits that the Appellant Shri Narayanan Nair Ajay Kumar is the Director of M/s Unique Shipping Services Ltd (CHA). The Appellant submitted an interim reply before the Adjudicating authority, denying the allegation made in the Show Cause Notice. He also submits that their submission was recorded in the earlier Adjudication order, dt.26.11.2003. It is further submitted that the Appellant could not appear during the de-novo proceedings and requested for time, which was rejected. It is submitted that the Adjudicating authority in denove proceedings, had not disputed their submission recorded in the earlier Adjudication order. He particularly drew the attention of the Bench to the Para 2 of their reply to the Show Cause Notice dt.07.07.2000. The main contention of the learned Counsel is that the Appellant after detecting the damage goods in the consignment informed to the concerned customs officer. He is not concerned with the confiscation of the goods in any manner. He is not concerned with the mis-declaration of the goods in any manner.

5. On the other hand, the learned Authorised Representative for the Revenue drew the attention of the Bench to the findings of the Adjudicating authority. He submits that the Adjudicating authority imposed the penalty on the basis of the statement recorded during investigation as well as the seizure of the goods.

6. We find that the Appellant submitted the interim reply dt.07.07.2000. It is stated in the said reply that the Appellant was detained in the Customs House from about 09 P.M. on 02.12.1999 till 23.00 on 04.12.1999 and thereafter he was called daily and made to sit in the Customs House from 10 A.M. to 06 P.M. except for 07.12.1999, when he was admitted in the evening of 06.12.199 to the evening of 07.12.1999 to the Anurag Nursing Home for treatment. We find that in the earlier Adjudication order, the Adjudicating authority had considered the interim reply of the Appellant as under:-

Shri Narayan Nair Ajay Kumar in his interim reply has submitted that the impugned goods were placed in their entirely before the Customs Officers for their thorough examination. Even the damaged goods which had been segregated and excluded from the goods to be exported, were available for customs examination. Before the goods under export were examined by the Customs Officers, the impugned shipping bills had been amended to exclude the damaged goods with the prior permission of the Customs Department obtained on the basis of a regular written application. Further, the impugned goods were examined by the proper Officers of Customs, to their entire satisfaction, who drew samples there from also and passed the written order in the respective shipping bills, permitting export of the goods. If notwithstanding these facts, the impugned goods are ultimately held liable to confiscation, he had no objection to dealing with them under the law, as deemed proper, since, being neither the owner nor the exporter, he had no interest in them.

7. The Tribunal in the remand order categorically observed that the case of the Appellant was not properly discussed and remanded to the Adjudicating authority for de-novo adjudication. In de-novo adjudication, the Adjudicating authority proceeded on the basis of statement dt.03.12.1999. It is seen that the Adjudicating authority had not disputed the contention made by the Appellant in his reply as referred in the earlier Adjudication order.

8. The case of the Revenue is that one M/s Shivam Overseas attempted to export the readymade garments by mis-declaring and it was found that the consignment was loaded with old and used garments. The main noticee M/s. Shivam Overseas attempted to collect the drawback in fraudulent manner by mis-declaring the goods. The Adjudicating authority confiscated the goods absolutely and also imposed penalty on M/s Shivam Overseas and its partner Shri Harjit Singh Grewal (Appellant No. 2). As the appeal of the main Appellant M/s Shivam Overseas has been dismissed by the Tribunal for non-compliance of the stay order, there is no need to go into the merits of the confiscation of the goods.

9. But, we do not find any material to impose penalty on the Appellant No. 1 Shri Narayanan Nair Ajay Kumar. Section 114 of the Customs Act, 1962 provides that Any person who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 113, or abets the doing or omission of such an act, shall be liable to penalty. The Appellant No. 1 took a definite stand that they have brought to the notice to the Customs officers of the damage goods.

10. So, imposition of penalty under Section 114 is not warranted against Shri Narayan Nair Ajay Kumar. The Adjudicating authority had discussed the role of Shri Harjit Singh Grewal Partner of the main appellant in the Adjudication order. We find that Shri Harjit Singh Grewal is the Partner of M/s Shivam Overseas, who has attempted to export the goods improperly to earn the drawback claim. It is seen that the appeal of M/s Shivam Overseas was already dismissed by the Tribunal. It is evident from the records that the Appellant was involved to export the goods improperly. Hence, imposition of penalty is justified.

11. In view of the above discussion, the penalty imposed on Shri Narayan Nair Ajay Kumar is set aside and the appeal filed by the Appellant is allowed with consequential relief. The appeal filed by Shri Harjit Singh Grewal is rejected.

(Dictated & Pronounced in Court)

(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial)

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