2011 (2) TMI 1052 - AT - Customs

Penalty under Sec.112 of the Customs Act - Held that - Penalty u/s 112 could be imposed if the goods are held liable for confiscation under Sec.111 of the Customs Act. As find that there is no proposal for confiscation in the show-cause notice & also there is no confiscation of the goods in the Order-in-Original passed by the Commissioner of Customs therefore, set aside the impugned order and allow the appeal of assessee.

Summary

Issues:
1. Alleged clearance of imported goods in the domestic market without payment of duty.
2. Imposition of penalty on the appellant by the Commissioner of Customs.
3. Nexus between the imported goods and the exported goods.
4. Confiscation of goods under Sec.111 of the Customs Act.
5. Imposition of penalty under Sec.112 of the Customs Act.

Detailed Analysis:
1. The case involved M/s. Satyam Garments, a 100% EOU, importing Polyester Fabrics without payment of duty under a specific notification. The allegation was that these goods were cleared in the domestic market without duty payment, appearing as deemed exports to other textile companies. The Commissioner of Customs imposed duty and a penalty on M/s. Satyam Garments, along with a penalty on the appellant. The appellant contended that there was no nexus between the imported and exported goods, emphasizing discrepancies in the Commissioner's order regarding abetment of fraudulent activities.

2. The appellant argued that since there was no proposal for confiscation of goods under Sec.111 of the Customs Act in the show-cause notice, the penalty imposed under Sec.112 could not be valid. The appellant relied on a previous decision to support this argument. The Tribunal noted that Sec.112 allows for penalties related to acts that render goods liable for confiscation under Sec.111. As there was no mention of confiscation in the show-cause notice or the Commissioner's order, the penalty under Sec.112 could not be upheld, leading to the appeal being allowed.

3. The JDR reiterated that the exported goods were linked to the imported goods, indicating active support for fraudulent activities. However, the Tribunal found no evidence of proposed confiscation in the show-cause notice, a crucial factor for imposing penalties under Sec.112. As the goods were not confiscated under Sec.111, the penalty under Sec.112 could not be sustained, resulting in the impugned order being set aside and the appeal being allowed.