ESSAR OIL LTD. Vs. COMMISSIONER OF CUSTOMS (PREV.)

JUDGEMENT

(1.) THE above appeal arises out of the order of the Commissioner of Customs (Preventive), Jamnagar, adjudicating show cause notice dated 7 -10 -2003 by confiscating Crude Distillation Unit Column/Vacuum Distillation Unit Column Vessels (hereinafter referred to as CDU/VDU) and pre -flash vessel imported by the appellants herein under invoice dated 15 -5 -1998 and 21 -5 -1998 respectively, for setting up a 10.5 million tons per annum crude oil refinery at Jamnagar, by filing into bond bills of entry which were permitted in February 1999 to be substituted with bills of entry for home consumption, under the provisions of Section 111(j) with option to redeem them on payment of a fine of Rs. 1.2 crores, confirming a demand of customs duty of Rs. 11,67,62,735/ - under Section 28(2) and ordering appropriation of Rs. 5,83,81,368/ - paid on 31 -3 -2004, ordering recovery of interest under Section 28AB and imposing penalty of amount equal to duty confirmed and imposing a further penalty of Rs. 1 crore on the appellant in its capacity as the custodian of the imported goods, in terms of Section 112(a)(ii) of the Customs Act, 1962.

(2.) THE goods have been confiscated on the ground that they were removed from the customs area without the permission of the proper officer; duty @ 10% has been confirmed, rejecting the appellants' request for coverage under the EPCG licences obtained by them on 27 -11 -2000 for the goods imported under the two bills of entry in question, under which they would have been entitled to clear the goods on payment of duty @ 5%, penalty of amount equal to duty has been imposed holding that the provisions of Section 114A are attracted against the importer for the reason that duty was short levied by reason of collusion or wilful misstatement or suppression of facts and therefore the person who is liable to pay duty or interest, as the case may be, as determined under Sub -section (2) of Section 28, shall be liable to penalty equal to duty or interest so determined; and penalty under Section 112(a) has been imposed upon the custodian for commission of acts, viz. removal of goods from customs area, which have rendered them liable to confiscation under Section 111(j).

(3.) WE have heard both sides.