9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (2) TMI 933 - HC - CustomsImposition of penalty u/s 112 (a) of the Customs Act, 1962 - mis-declaration of the description of the goods - IS 1000 Fibre-Optic Endoscope Surgical System - classified under CTH 9018.90 or otherwise - Whether deletion of penalty imposed u/s 114A justified? - Held that - the precondition to impose penalty is the determination, after Show Cause Notice that non levy or short levy of customs duty was the result of mis-declaration. The Show Cause Notice was issued under the extended period, on account of the Revenue s contention that there was willful mis-declaration. The findings of the Commissioner clearly established the nature of the mis-declaration, i.e that instead of describing the products accurately, i.e. as da Vinci Surgical System it was described as an endoscopic surgical system. The CESTAT could not have set aside the penalty, which is mandatory. What the Revenue could not have done (and in fairness, did not) was to impose penalty in addition, u/s 112 (a); this is because of fifth proviso to Section 114A which stipulates that Provided also that where any penalty has been levied under this section, no penalty shall be levied under section 112 or section 114. Appeal allowed - decided in favor of appellant-Revenue.
Issues Involved:
1. Whether the Customs Excise and Service Tax Appellate Tribunal (CESTAT) erred in holding that no penalty under Section 112(a) of the Customs Act, 1962 could have been levied. 2. Whether the penalty under Section 114A of the Customs Act, 1962 was correctly set aside by the CESTAT. 3. Whether interest under Section 28AB of the Customs Act, 1962 was recoverable. Detailed Analysis: 1. Penalty under Section 112(a) of the Customs Act, 1962: The appellant filed a Bill of Entry for "IS 1000 Fibre-Optic Endoscope Surgical System" and claimed concessional duty under Notification No. 21/2002. A Show Cause Notice was issued alleging mis-declaration and proposing penalties under Sections 112(a) and 114A of the Customs Act, 1962. The Commissioner of Customs found the assessee guilty of mis-declaration and imposed penalties. The CESTAT, however, set aside the penalties under Section 114A, leading to the Revenue’s appeal. The CESTAT's reasoning was based on the fact that the Show Cause Notice did not invoke Section 28 of the Customs Act, 1962, which is a prerequisite for penalties under Section 114A. CESTAT also noted that the penalty under Section 112 could not be imposed if Section 114A was invoked, following the precedent set in Care Foundation. 2. Penalty under Section 114A of the Customs Act, 1962: The Show Cause Notice and the Commissioner’s findings established that the goods were mis-declared. The Show Cause Notice proposed penalties under both Sections 112(a) and 114A. The CESTAT set aside the penalty under Section 114A, citing that the Show Cause Notice did not raise the demand under Section 28, which is necessary for invoking Section 114A. The High Court, however, noted that the Show Cause Notice did invoke both Sections 112(a) and 114A, and the findings of mis-declaration were unchallenged. Given the clear terms of the Show Cause Notice and the established mis-declaration, the High Court held that the penalty under Section 114A was mandatory and should not have been set aside by the CESTAT. 3. Interest under Section 28AB of the Customs Act, 1962: The CESTAT set aside the demand for interest under Section 28AB, noting that the Show Cause Notice did not mention Section 28, and interest under Section 28AB is chargeable only when the demand is confirmed under Section 28. The CESTAT also referenced judicial pronouncements that no interest is recoverable on finalization of provisional assessments made prior to 13.07.2006, even if the finalization took place after this date. The High Court agreed with the CESTAT's reasoning on this point, noting that the Show Cause Notice did not raise the demand in terms of Section 28, thereby making the demand for interest under Section 28AB unsustainable. Conclusion: The High Court concluded that the CESTAT erred in deleting the penalty under Section 114A, given the clear findings of mis-declaration and the invocation of both Sections 112(a) and 114A in the Show Cause Notice. The penalty under Section 114A was mandatory in this case. The High Court set aside the CESTAT’s order, restored the Commissioner’s order, and allowed the Revenue’s appeal. The demand for interest under Section 28AB was correctly set aside by the CESTAT.
|
