2021 (7) TMI 634 - AT - Customs

Jurisdiction - power of DRI to issue SCN - Levy of penalty - violation by a Customs House Agent or Customs Broker under the respective regulations - seizure of Red Sanders on seven noticees - HELD THAT - The penalty levied is invalid, since the Notice issued by the DRI is held to be invalid, by the Hon ble Supreme Court in the case of M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS 2021 (3) TMI 384 - SUPREME COURT . The Board had thereafter issued an Instruction No. 04/2021-Customs dated 17.03.2021 in F.No.450/72/2021-Cus-IV stating that the said instruction is issued specifically in respect of the Show Cause Notice against Shri Anil Aggarwal and 11 others and, in any case, the Instruction cannot override the decision of a three Judge Bench of the Apex Court, which is binding as the law of the land. Clearly therefore, there was no jurisdiction with the DRI to issue the Show Cause Notice in question and consequently, the whole proceedings become ab initio void. No demand, much less any penalty, can sustain - Appeal allowed - decided in favor of appellant.

Summary

Issues:
Validity of penalty imposed under Section 114 of the Customs Act, 1962 based on a Show Cause Notice issued by the Directorate of Revenue Intelligence (DRI).

Detailed Analysis:

Issue 1: Validity of Penalty Imposed
The appellant challenged the findings of the Commissioner of Customs (Appeals-II) in the impugned Order-in-Appeal, which remanded the case to the Adjudicating Authority for de novo adjudication. The appellant's advocate argued that the DRI's Show Cause Notice dated 08.11.2018 related to the seizure of Red Sanders on seven noticees, but the proposal against the appellant was for a penalty under Section 114 of the Customs Act, 1962. The Adjudicating Authority had refrained from imposing a penalty on the appellant in an earlier order. The appellant contended that the First Appellate Authority's decision for de novo adjudication was unjust as it did not consider the appellant's pleadings and did not find any fault with the Adjudicating Authority's findings. The advocate also cited various decisions to support the argument that penalties under the Customs Act could not be imposed on Customs House Agents or Customs Brokers for violations under respective regulations.

Issue 2: Arguments and Counterarguments
The Departmental Representative supported the First Appellate Authority's decision for de novo adjudication and requested the retention of the impugned order. However, upon hearing both sides and examining the documents, including the Show Cause Notice, the Member (Judicial) found the penalty levied to be invalid. Citing a Supreme Court judgment in the case of M/s. Canon India Private Limited v. Commissioner of Customs, the Member highlighted that the Court had declared the entire proceeding initiated by the DRI through show cause notices as invalid and set aside the demands. The Board's subsequent Instruction No. 04/2021-Customs was deemed ineffective in overriding the Supreme Court's decision, rendering the DRI's actions void ab initio.

Issue 3: Decision and Conclusion
Consequently, the Member held that no demand or penalty could be sustained in this case. The impugned order was set aside, and the appeal was allowed with any consequential benefits as per the law. The judgment was pronounced in open court on 15.07.2021. The decision rested on the invalidity of the Show Cause Notice issued by the DRI, as established by the Supreme Court's ruling, leading to the dismissal of the penalty imposed under Section 114 of the Customs Act, 1962.