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2018 (9) TMI 1292 - HC - CustomsPenalty u/s 117 of CA - gold imported by the appellant did not bare engraving of weight in metric unit for claiming exemption - goods were allowed to be exported - discretionary power to impose penalty - Principal Commissioner has held that the imported goods are not eligible for duty exemption and further it is also observed that the appellant and the supplier/exporter are related parties and the importer does not have any prior registration of the case with the Special Valuation Branch - Import of gold bars under advanced authorization - exemption under N/N. 12/2012-Cus dated 17.03.2012. Held that - The imposition of penalty under Section 117 of the Act is discretionary. When the authority exercises its discretion to impose penalty, no question of law would arise from such imposition of penalty, in the absence of allegation of arbitrary or malafide exercise of discretionary power. No such arbitrariness or malafide exercise of discretionary power is alleged nor it is the case of the appellant that the Principal Commissioner of Customs has exercised his discretionary power under Section 117 of the Act in an arbitrary manner or in a malafide exercise of power. Appeal dismissed.
Issues:
Challenge to order permitting re-export with penalty under Section 117 of the Customs Act, 1962 and appeal rejection by Customs, Excise and Service Tax Appellate Tribunal (CESTAT). Analysis: The appellant challenged the order permitting re-export with a penalty of ?1,00,000 under Section 117 of the Customs Act, 1962, and the subsequent affirmation of this order by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT). The appellant imported gold bars without the required engraving of weight in metric units, rendering them ineligible for duty exemption under Notification No.12/2012-Cus. The Principal Commissioner of Customs imposed the penalty while allowing re-export, citing non-compliance with the exemption criteria. The Tribunal upheld this decision, prompting the appellant to question the validity of the orders on several legal grounds. The appellant raised questions regarding the Tribunal's confirmation of the orders without providing reasons, the legality of the re-export fine imposition against Circulars and Law, the sustainability of the penalty levy contrary to the Customs Act provisions, and the justification for confirming the penalty under the circumstances. The appellant argued that the absence of engraved weight on the gold bars was the exporter's mistake, not theirs, and contended that they should not be penalized for it. The appellant's counsel asserted that the penalty was unwarranted as there was no contravention of the Act by the importer. The imposition of penalty under Section 117 of the Customs Act is discretionary, with a maximum limit of ?1,00,000. The Principal Commissioner exercised this discretion based on the non-compliance with the duty exemption requirements and the relationship between the appellant and the supplier/exporter. The appellant's lack of prior registration with the Special Valuation Branch was also noted. The judgment emphasized that the discretionary imposition of penalties does not raise legal questions unless there are allegations of arbitrary or malicious exercise of power, which were not present in this case. Ultimately, the Court dismissed the appeal, stating that no substantial legal questions arose from the penalty imposition under Section 117 of the Customs Act. The judgment highlighted the discretionary nature of penalty imposition and the absence of arbitrariness or malice in the Principal Commissioner's decision. The appellant's arguments challenging the penalty were deemed insufficient to warrant a reversal of the lower authorities' decisions.
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