Page 205 - ELT_15th June 2020_VOL 372_Part 6th

2020 ] NARESH DUDHELA v. COMMISSIONER OF CUSTOMS (APPEALS), MUMBAI-II 883

Therefore it cannot be said that the appellants permitted the use of his IEC for
the purpose of the imports in question making the goods liable for confiscation.
Learned Counsel Ms. Pooja Reddy also appearing for the other applicant i.e. Shri
Naresh Mathuradas Dudhela submits on similar lines and prays that the penalty
imposed on his may be set aside.
3. The Learned AR for the department reiterates the findings of OIO
and OIA and submits that the involvement of Shri Rajesh P. Joshi and Shri
Naresh M. Dudhela have been accepted by them in their respective statements.
Therefore penalty [him] been correctly imposed and the same does not need any
interference.
4. On going through the records of the case and after perusing the
statements of the applicants, we find that Shri Rajesh P. Joshi in his statement
dated 23-12-2008 and 21-10-2008, has accepted that he had applied for IEC in the
name of M/s. Ravi Enterprises with an intention to lend the same for a monetary
consideration through Shri Naresh M. Dudhela and that he was no aware of any
imports in the name of the said firm. This statement has not been retracted. The
OIO and OIA recorded the past activities of Shri Joshi. However we keep our-
selves concerned only about the case before us. It is apparent that Shri Rajesh P.
Joshi has lent his IEC for a consideration. He submits that Surendra Radheshyam
Choudhary prepared the NOC in the name of M/s. Ravi Enterprises so that the
amendment in IGM to change the name of the importer could be carried out.
Looking into the facts and circumstances of the case we find that the involvement
of Shri Rajesh P. Joshi is limited to the extent of lending IEC to other importers
for a consideration. However, for this purpose the penalty levied cannot be com-
parable to the penalty imposed on the actual perpetrators of the offence. There-
fore we are inclined to reduce the penalty imposed on Shri Rajesh P. Joshi in re-
spect of Appeal No. C/85716/2013.
5. Coming to the role of Shri Naresh M. Dudhela in the impugned case
we find that Shri Naresh M. Dudhela was involved in the past as well in the im-
ports made by Shri Kaushal Anil Shah, in the import of goods using the IEC of
M/s. Ravi Enterprises for a consideration. Shri Naresh M. Dudhela in his state-
ment dated 5-7-2008 accepted that he has arranged for the IEC of 6 firms, includ-
ing that of M/s. Ravi Enterprises to Shri Kaushal A. Shah for a monetary consid-
eration; he got a consideration of 1.5% of the value. He is the person who advised
Shri Joshi to obtain the IEC in his name and to lend it; he also obtained signatures
of Shri Rajesh P. Joshi on blank letter-heads and cheques of M/s. Ravi Enterpris-
es. We find that the role of Shri Naresh M. Dudhela cannot be undermined in the
present case also. However as no specific allegations of his role other than ar-
ranging for the IEC of M/s. Ravi Enterprises to be used, has been brought on
record. Therefore we find that this case also requires a reconsideration of quan-
tum of penalty.
6. The Counsel for the appellant relies upon the case of Atul D. Sonpal -
2012 (275) E.L.T. 248 (Tri. - Mumbai) and Hamid Fahim Ansari - 2009 (241) E.L.T.
168 (Bom.) wherein it was held that having valid IEC number and lending it tout
to others in itself does not constitute an offence where there is no other allega-
tions of misdeclaration, misrepresentation, under valuation etc. Understandably
the facts of the present case are different as undervaluation is established in this
EXCISE LAW TIMES  15th June 2020  205