2015 (4) TMI 235 - HC - Customs

Misdeclaration of goods - goods declared as Hot mix plant Batch type - On examination it was found that goods were only components of complete hot mix plant and not a complete hot mix plant - denial of exemption from duty in terms of Notification No.17/2001-Cus. - Imposition of penalty - Held that - On examination of the imported goods, import documents and the correspondences between the respondent/importer, the supplier and the local representative, the Commissioner came to the conclusion that the importer misdeclared the goods. Further, it is admitted by the respondent/importer that the goods imported are certain components of the hot mix plant and not a complete plant. Since the respondent has misdeclared the goods as hot mix plant, the Commissioner came to the conclusion to confiscate the goods. Once confiscation is ordered, penalty is automatic. As the respondent/importer had admitted the position and their evidence is also very clear stating that they had imported only parts of hot mix plant and not entire plant, the above-said decision in the case of IVRCL (supra) does not apply to the facts of the present case. Further, the correspondences between the respondent/importer, the supplier and the local representative clearly show that the importer was aware that the goods were only components and not entire plant. - Following decision of Commissioner of Customs (AIR), Chennai V. A.P.Pinherio reported in 2014 (12) TMI 610 - MADRAS HIGH COURT - Decided in favour of Revenue.

Summary

Issues:
1. Whether CESTAT has the power to reduce the fine and waive the penalty when both are mandatory under statute?
2. Whether the order of waiving the penalty under Section 112 of the Customs Act is correct when confiscation of goods under Section 111 was upheld?

Issue 1:
The first substantial question of law raised was whether CESTAT has the authority to reduce the fine and waive the penalty, especially when both are mandatory under the statute and previous Supreme Court decisions have ruled against such actions. However, in the present case, the imposition of a mandatory penalty was not contemplated in the adjudication order. Hence, this question was deemed irrelevant to the facts at hand.

Issue 2:
The second question of law focused on the correctness of the order by CESTAT to waive the penalty imposed under Section 112 of the Customs Act, despite upholding the confiscation of goods under Section 111. The Commissioner of Customs had held that the imported goods were components of a hot mix plant, not the complete plant, leading to confiscation and imposition of a fine and penalty. The Tribunal, following precedent, reduced the fine and set aside the penalty. However, the Revenue contended that penalty imposition is automatic upon confiscation under the Customs Act.

Analysis:
Upon examination, the Court found that Section 112 of the Customs Act mandates the imposition of a penalty once confiscation is ordered. Previous case law highlighted that penalties were set aside due to insufficient evidence rendering the goods liable for confiscation. In this case, it was clear that the importer misdeclared the goods, leading to confiscation, making the penalty automatic. The evidence indicated the importer's awareness of importing only parts of the hot mix plant, not the entire plant, thus distinguishing this case from previous decisions where penalties were waived due to lack of evidence.

Additionally, a similar stance was taken in a previous case by the Court, emphasizing that the Managing Director's involvement in importation negated claims of ignorance and upheld penalties under Section 112(a) of the Customs Act. The Court ruled in favor of the Revenue, setting aside the Tribunal's decision and restoring the Commissioner's order.

In conclusion, the Court allowed the Civil Miscellaneous Appeal, with no costs incurred, based on the automatic imposition of penalties upon confiscation under the Customs Act and the clear evidence of misdeclaration by the importer, distinguishing this case from previous instances where penalties were waived due to lack of evidence.