2012 (6) TMI 226 - AT - Customs

Penalty u/s 112 - Non- clearance of goods by assessee by filing B/E - assessee contended abandonment of goods and that foreign supplier (TIL) has already contracted to sell these goods to another entity(WTPL) - Import General Manifest (IGM) amended accordingly - Held that - It is seen that appellant herein has clearly been indicated as a person who is not an importer by the action of foreign supplier TIL and WTPL. Further, IGM has also been amended. As the said contract has already broken down and the foreign supplier has sought for change of the importer s name and subsequently also sought for re-export of the goods, in our considered view, the current appellant cannot be visited with any penalty u/s 112 inasmuch as the said provisions will apply only to a situation wherein there is a violation of the provisions of Section 111 of Customs Act, 1962 by an importer.

Issues:
1. Restoration of appeal due to non-prosecution.
2. Enhancement of value of imported goods.
3. Imposition of penalty under Section 112 of Customs Act, 1962.

Issue 1: Restoration of appeal due to non-prosecution
The appeal was dismissed for non-prosecution, and an application for restoration was filed. After hearing both sides, it was found that the appellant had justified the reasons for non-appearance. Consequently, the final order was recalled, and the appeal was restored to its original number. With the consent of both sides, the appeal, dating back to 2006, was taken up for disposal.

Issue 2: Enhancement of value of imported goods
The main issue in this appeal was the enhancement of the value of goods imported into India. The appellant had imported 6 containers of goods by a contract and made an import value payment to the foreign supplier. Subsequently, a Show Cause Notice was issued to the appellant for not clearing the goods timely, leading to the enhancement of the consignment's value and imposition of a penalty under Section 112 of Customs Act, 1962 by the adjudicating authority. The appellant contested the notice, claiming that the goods were abandoned and the foreign supplier had contracted to sell them to another entity.

Issue 3: Imposition of penalty under Section 112 of Customs Act, 1962
The appellant argued against the imposition of a penalty, stating that they had abandoned the goods, and the foreign supplier had transferred the goods to another buyer. The Revenue authorities contended that the appellant was still liable as they had held themselves out as an importer. After considering both sides' submissions and examining the facts, the Tribunal found that the appellant could not be penalized under Section 112 as the contract had broken down, the foreign supplier had sought changes in import documents, and requested re-export of the goods.

In conclusion, the Tribunal set aside the impugned order, allowing the appeal with consequential relief. The judgment clarified that the appellant could not be penalized under Section 112 of the Customs Act, 1962, as the contract had broken down, and the foreign supplier had taken actions indicating the appellant was no longer the importer.

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