PRAVIN GUPTA Vs. COMMISSIONER OF CUSTOMS (IMPORT)

JUDGEMENT

(1.) THE appellants namely Shri Pravin Gupta and Shri Ravi Divecha are in appeals against the impugned order for imposing penalties of Rs. 12,00,000/ - and Rs. 15,00,000/ - respectively under Section 112(i) of the Customs Act, 1962. Brief facts of the case are that on a specific intelligence that a large quantity of cloves, by mis -declaring as 'chicpeas', were being smuggled into India through one container having No. EYLU 2126157 and TDRU 2306856 were intercepted. It was found that as per the Import General Manifest's (I.G.M.), the importer is M/s. Dhanlaxmi Enterprise (I) who declared the goods as 'chicpeas'. On examination of the goods, it was found that the cloves were also being smuggled along with the chicpeas. During the course of investigation it was found that Shri Ravi Divecha has asked Shri Dilip Gosalia to get I.E.C. No. of any firms so that he could import goods in their names. Shri Dilip Gosalia approached M/s. Dhanlaxmi Enterprises (I), a I.E.C. holder, who lent their I.E.C. to Shri Dilip Gosalia. During the course of investigation, various statements were recorded and it was also found that Shri Pravin Gupta has financed a loan of Rs. 5,00,000/ - to Shri Ravi Divecha for the importation of the consignments on persuasion of Shri Jayesh Gosalia. Proceedings were initiated and penalties on both the appellants namely Shri Pravin Gupta and Shri Ravi Divecha were confirmed under Section 112(i) of the Customs Act, 1962. Aggrieved by the said order, the appellants are before me.

(2.) ON behalf of Shri Pravin Gupta, Shri S.N. Kantawalla, learned Advocate appeared and submitted that from various statements recorded by the investigation team it was found that Shri Pravin Gupta has financed a sum of Rs. 5,00,000/ - to Shri Ravi Divecha on persuasion of Shri Jayesh Gosalia (who was a guarantor for the amount). Although the appellant Shri Pravin Gupta is in the business of exportation of goods but he is nothing to do with the consignments in question as he has only financed Rs. 5,00,000/ -. It is further submitted that the sale proceeds of the consignments were about Rs. 25,00,000/ - and above but no documents show that the appellant was the financier for the whole amount in the matter. He also submitted that no Bill of Entry was filed by anybody for claiming the import of the goods. Therefore, the question for misdeclaration of the goods does not arise. If there is no misdeclaration of the goods, penalty under Section 112 are not imposable. To support his contention he placed reliance on the decisions of this Tribunal in the case of Shiraz Clearing Agencies P. Ltd. vide order No. A/1157/13/CSTB/C.I., dated 15 -7 -2013 [ : 2014 (299) E.L.T. 484 (T)], Bashayir -, 2006 (206) E.L.T. 541 (Tri. -Chennai), Ashwin Doshi - : 2004 (173) E.L.T. 488 (Tri. -Bom.) and the judgment of the Hon'ble High Court of Bombay in the case of C.C. v. Kabul Textiles (L.L.C.) - : 2006 (206) E.L.T. 1173 (Bom.) and pleads that the penalty on the appellant to be set aside.

(3.) CONSIDERED the submissions made by both sides and perused the case laws.