2018 (3) TMI 363 - AT - Customs

N/N. 93/2004-Cus - import of raw materials i.e. HR coils without payment of customs duty under Advance Authorization Licenses - the case of the department is that the removal of goods without use by the appellant is in contravention of the condition of N/N. 93/2004-Cus - penalty u/s 114A - Held that - penalty u/s 114A can be imposed when there is evasion of customs duty - The fact in the present case is that the appellants have not paid the customs duty when the goods were removed. This demand is also admitted by the appellant, therefore, penalty under Section 114A is inevitable particularly when there is suppression of fact and extended period was invoked under the SCN - penalty upheld. Penalty on Director u/s 112(a) of the CA 1962 - Held that - the appellant have admittedly paid the duty along with interest and they have also issued invoice in respect of removal of imported goods - the personal penalty was not warranted on Shri N.K. Chaudhari, who is mere employee of the appellant company - penalty set aside. Appeal allowed in part.

Issues:
1. Whether the removal of goods without use by the appellant is in contravention of the condition of Notification No.93/2004-Cus?
2. Whether the appellant is liable for penalty and confiscation of goods due to the removal without use?
3. Whether the redemption fine imposed on the appellant is justified?
4. Whether penalty under Section 114A of the Customs Act, 1962 can be imposed on the appellant?
5. Whether the penalty imposed on the Director of the appellant company under Section 112(a) of the Customs Act, 1962 is warranted?

Issue 1:
The appellant imported raw materials without payment of customs duty under Advance Authorization Licenses. The goods were partly removed due to being unfit for use, and the appellant paid the customs duty on such removal along with interest. The department claimed the removal without use contravened the condition of Notification No.93/2004-Cus, leading to liability for confiscation and penalty.

Analysis: The appellant argued that they complied with the notification by discharging the customs duty and interest when the goods were removed without use. Citing relevant judgments, the appellant contended that no penalty or redemption fine was warranted as they fulfilled the requirements of the notification by paying the customs duty on the removed goods.

Issue 2:
The Revenue asserted that the appellant cleared the goods without paying customs duty initially, only doing so upon the department's intervention. They argued that the appellant did not deserve leniency as they would have evaded payment if not pointed out by the department.

Analysis: The Tribunal found that the redemption fine was not justified as the goods were not available for confiscation. However, the penalty under Section 114A of the Customs Act, 1962 was upheld due to the appellant's failure to pay customs duty upon removal, admitting to the demand and invoking an extended period under the show-cause notice.

Issue 3:
The Tribunal addressed the imposition of a redemption fine and upheld the appellant's argument that it was not warranted, setting it aside based on the Shiv Kripa Ispat case precedent.

Issue 4:
Regarding the penalty under Section 114A of the Customs Act, 1962, the Tribunal upheld its imposition, citing the Supreme Court's decision in Dharamendra Textiles Processors case that mandatory penalties cannot be reduced or waived when there is evasion of customs duty.

Issue 5:
The penalty imposed on the Director of the appellant company under Section 112(a) of the Customs Act, 1962 was challenged. The Tribunal found that the penalty was not warranted as the duty and interest were paid, and the Director was a mere employee of the company, setting aside the penalty imposed on the Director.

In conclusion, the Tribunal partly allowed the appeal of the appellant company, setting aside the redemption fine and the penalty imposed on the Director, while upholding the penalty under Section 114A of the Customs Act, 1962.

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