(1.) Heard the learned Counsel for the parties. Perused the orders passed by the Adjudicating Officer as well as by the Appellate Tribunal. 1!
(2.) On perusal of the record, it appears that the present appellant, Ranjeet Sanghvi and one Baban Sharma used to import second-hand printing machines in the name of different parties under the "actual user" condition prescribed in the Import policy during the relevant period. However, having so imported such second-hand printing machines, they used to sell to different parties in violation of the said conditions and the import policy. Similarly, they had imported 16 multilith single colour second-hand printing machines from M/s. CJB Printing and Equipment, U.K. in the name of M/s. Classic Pack, a proprietorship concern of one Shailesh Mehta, vide Bill of Entry No. 1588 dated 15.11.1997. However, all those machines were offloaded in the premises of Baban Sharma at 51-A, Pragati Industrial Estate, N.M. Joshi Marg, Lower Parel, Mumbai. Later on, during a raid 11 of those 16 printing machines were found to have been stored in the premises of M/s. Fayyaz Binding Works owned by Mohammed Illyas Qureshi. Those 11 machines were from the lot imported in the name of M/s. Classic Pack. Statements of Mohammed Illyas Qureshi, Shailesh Mehta, Baban Sharma and the present appellant, Ranjeet Singhvi came to be recorded. Statement of Shailesh Mehta, proprietor of M/s. Classic Pack revealed that the present appellant and one Baban Sharma had earlier also imported second-hand printing machines from U.K. and he was also informed that such machines could be imported under the actual user condition and could be sold in the market, which gives profit. As Shailesh Mehta did not have sufficient money to import such goods, the present appellant and Baban Sharma offered to arrange finances for importing machines. Shailesh Mehta refused the offer. Thereafter, he was offered a commission of Rs. 1 lac if he would allow the import of machinery in the name of his proprietorship concern M/s. Classic Pack. Shailesh Mehta accepted this offer. Later on, the present appellant handed over 4 cheques worth Rs. 9.5 lac to Shailesh Mehta in the month of January, 1997. Those cheques were issued by M/s. Ambika Stones in favour of the Classic Pack. Statement of one Girish Mehta revealed that he had issued 4 cheques in favour of M/s. Classic Pack as per the instructions from the present appellant and the cheques were handed over to the present appellant. The present appellant also stood as a guarantor for repayment of that amount. Statement of Shailesh Mehta revealed that the present appellant and Baban Sharma had paid him Rs. 5 lac in cash for payment of the customs duty and clearance charges on import of 16 secondhand printing machines. They had also obtained his signatures on several documents for clearance of goods. After clearance of goods, the present appellant and Baban Sharma took possession of machinery and paid an amount of Rs. 1 lac to Shailesh Mehta as commission. Machinery was offloaded at the premises of Baban Sharma at Pragati Industrial Estate. Later on, 11 of the printing machines, which were imported in the name of M/s. Classic Pack, were found stored in the premises of Fayyaz Binding Works. Statement of Baban Sharma under section 108 also corroborated the story. In his statement under section 108, the present appellant had admitted most of the above facts. He also admitted that he alongwith Baban Sharma had been to U.K. and had placed an order for import of 16 second-hand printing machines from M/s. CJB Printing and Equipment, U.K. He admitted that he had arranged finances for M/s. Classic Pack by getting 4 cheques of Rs. 9.5 lac from the Ambika Stones. He also admitted that he alongwith Baban Sharma had cleared consignment of 16 second-hand printing machines from JNPT Nhava Sheva. His statement revealed that even earlier he had helped Baban Sharma in importing 26 second-hand printing machines.
(3.) Adjudicating Authority minutely considered the whole material before coming to conclusion that the present appellant, Baban Sharma and others had violated provisions of Foreign Trade (Development & Regulation) Act, 1992 read with Export and Import Policy for the period 1996-97 and thus, they had violated provisions of section 111 (o) of the Customs Act, 1962. In the result, they were held guilty under section 112(a) and section 112(b) of the Customs Act, 1962. The present appellant and Baban Sharma, taking into consideration their main role, were awarded penalty of Rs. 10 lac each. The Appellate Tribunal also minutely considered the whole material and dismissed the appeal filed by the present appellant, Baban Sharma and Mohammed Illyas Qureshi. 4. Mr. Shah the learned Counsel for the appellant vehemently contended that the second-hand printing machines could be freely imported. There was no prohibition on their import nor any exemption of duty was sought on the same and, therefore, there could not be any violation of section 111 (o) of the Customs Act, 1962 by anybody. According to him, if there was no violation of section 111(o), penalty could not be imposed under section 112. Infact, in the present appeal, no ground is taken that this point was pressed before the Appellate Tribunal. Even though in the appeal filed before the Appellate Authority, a ground was taken that the provisions of section 112(a) and (b) are not attracted and there could not be any violation of "actual user condition" by him. It appears that this point was not argued before the Appellate Tribunal. Anyhow, in the interest of justice, we heard Mr. Shah on this point also. Section 111 reads as follows: 111. Confiscation of improperly imported goods, etc.- The following goods brought from a place outside India shall be liable to confiscation :-