2007 (11) TMI 121 - AT - Customs

Respondent has procured the goods of foreign origin with out bills from open market - the question of demanding duty u/s 28 from him treating him as importer and imposition of penalty under Section 114A does not arise, which is applicable only in respect of person who is liable to pay the duty - Section 12 is charging section it cannot be invoked in such case - order of the Commissioner (Appeals), is therefore legal and proper.

Summary

Issues:
- Duty demand under Section 28 of the Customs Act
- Penalty imposition under Section 114A
- Confiscation of goods
- Reduction of penalty by Commissioner (Appeals)

Analysis:
1. Duty demand under Section 28 of the Customs Act:
The case involved the procurement of foreign origin goods without proper documentation. The original authority demanded duty from the respondent under Section 28 of the Customs Act. However, the Commissioner (Appeals) ruled that duty could not be demanded from the respondent as he was not the importer but had illicitly procured the goods from the open market without bills. The Tribunal upheld this decision, stating that invoking Section 12 of the Customs Act in the show cause notice did not aid the department's case. The respondent, not being the importer, was not liable for duty under Section 28.

2. Penalty imposition under Section 114A:
Along with duty demand, a penalty was imposed on the respondent under Section 114A by the original authority. The Commissioner (Appeals) reduced the penalty from Rs. 68,097 to Rs. 50,000 considering the circumstances. The Tribunal affirmed the Commissioner's decision, emphasizing that Section 114A applies only to persons liable to pay duty. Since the respondent was not considered an importer, the imposition of penalty under Section 114A was deemed inappropriate.

3. Confiscation of goods:
The original authority confiscated the goods valued at Rs. 96,200 but allowed their release on payment of a redemption fine of Rs. 20,000. The Commissioner (Appeals) upheld the confiscation but reduced the penalty amount. The Tribunal did not find any grounds to interfere with this decision, as the respondent's procurement of foreign goods without proper documentation justified the confiscation.

4. Reduction of penalty by Commissioner (Appeals):
The Commissioner (Appeals) reduced the penalty imposed on the respondent from Rs. 68,097 to Rs. 50,000. This reduction was based on the fact that the respondent was not the importer but had acquired the goods illicitly. The Tribunal supported this reduction, indicating that the penalty amount was adjusted in light of the circumstances surrounding the case.

In conclusion, the Tribunal rejected the department's appeal, affirming the decision of the Commissioner (Appeals) regarding duty demand, penalty imposition, and confiscation of goods. The judgment highlighted that the respondent, not being the importer, was not liable for duty under Section 28 or penalty under Section 114A. The reduction of the penalty by the Commissioner (Appeals) was deemed appropriate given the nature of the procurement of foreign goods without proper documentation.