2015 (12) TMI 1388 - AT - Customs

Import of goods without having the IE Code at the time of importation - Penalty u/s 117 - Confiscation of goods - goods are not available and have already been released on payment of duty - Held that - There is no indication as to what is the value of the goods imported, what is the duty liability involved. No doubt the goods may be liable to confiscation strictly going by the proviso to Section 111(d) read with Foreign Trade Act. However the Revenue never chose the option of imposing penalty under Section 112 at the original stage in both these cases and not resorting to confiscation, in my opinion it is too late or the matter to be reopened. The proper course to be adopted would have been to remand the matter to the original authority so that the importers are given an opportunity to contest proposal for confiscation, imposition of redemption fine (in the absence of goods) and imposition of penalty under Section 112. It is settled law that when goods are not available and have already been released on payment of duty, they cannot be confiscated. Only in the case of provisional assessment where goods are released conditionally, confiscation can be resorted to and fine can be imposed if the goods are not available. - No doubt penalty can be imposed for rendering the goods liable to confiscation. In my opinion, for the only offence of not having the IE Code at the time of importation, imposing penalty under Section 112 and remanding the matter for that purpose may not be necessary - Decided against Revenue.

Issues:
1. Imposition of penalty under Sections 117 and 112 of the Customs Act 1962 without show-cause notice.
2. Request for confiscation of goods and imposition of redemption fine by the Revenue.
3. Lack of indication on the value of imported goods and duty liability in the impugned orders.
4. Consideration of penalty imposition for not having Importer-Exporter Code (IE Code) at the time of importation.
5. Applicability of confiscation and fine imposition in cases where goods have already been released on payment of duty.

Analysis:
1. The judgment addresses the imposition of penalties under Sections 117 and 112 of the Customs Act 1962 without the issuance of show-cause notices. Importers, lacking Importer-Exporter Code (IE Code), requested adjudication without the issuance of show-cause notices. The original authority imposed penalties of &8377; 2000 and &8377; 500 in two separate cases. Appeals were filed by the Revenue, which were rejected by the Commissioner (Appeals) and subsequently brought before the Tribunal.

2. The Revenue argued for the confiscation of goods, imposition of redemption fine, and penalty under Section 112 of the Customs Act 1962. However, it was noted that no show-cause notice had been issued, and there was no proposal for confiscating the goods. The judgment highlighted the absence of information regarding the value of imported goods and duty liability in the impugned orders.

3. The Tribunal observed that while the goods might be liable to confiscation under the proviso to Section 111(d) read with the Foreign Trade Act, the Revenue did not opt for imposing penalties under Section 112 initially. The judgment emphasized the importance of providing importers with an opportunity to contest proposals for confiscation, redemption fine, and penalty imposition. It was noted that confiscation could only be considered in cases of provisional assessment where goods were conditionally released.

4. Regarding the penalty imposition for not having the IE Code at the time of importation, the judgment stated that penalties imposed by the original authority served the purpose. It was deemed unnecessary to remand the matter for further penalty imposition solely for the absence of the IE Code during importation.

5. The judgment concluded that reopening and remanding the matter for confirmation of confiscation would not be appropriate in cases where goods had already been released upon payment of duty. It was highlighted that penalties could be imposed for rendering goods liable to confiscation, and in this specific case, the penalties imposed by the original authority were considered sufficient. Consequently, the appeals were rejected, and the penalties imposed were upheld.

(Order pronounced in open court)

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