2022 (11) TMI 603 - AT - Customs

Jurisdiction to issue Show Cause notice - Illegal removal of goods from CFS - Pilfered goods - demand of duty u/s 45(3) of Customs Act, 1962 - imposition of penalty for allowing removal of containers without proper customs clearance - confiscation of goods - HELD THAT - As per the OIO No.78721/2020 dated 29.12.2020 duty amount of Rs.22,77,047/- was confirmed. On the very same investigation, the respondent was issued SCN under the Handling of Cargo Regulations, 2009. The said SCN was adjudicated, and OIO No.79248/2021 dated 29.01.2021 was passed wherein a penalty of Rs.50,000/- was imposed on the respondent. It is submitted that the respondent has paid the duty as well as the above penalty and is not contesting these issues any further. In para-7 of the impugned order passed by the Commissioner (Appeals) it is noted that respondent has paid up the entire duty demanded as well as penalty imposed by the original authority. In spite of payment of duty and penalty, the Commissioner (Appeals) has directed for remand for the matter on the basis of the judgment of the Hon ble Apex Court in M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS 2021 (3) TMI 384 - SUPREME COURT . When the entire duty and penalty has been paid up by the respondent, there are no grounds to re-examine as to whether the SIIB was the proper officer to issue SCN. The direction to remand the matter is totally unnecessary and uncalled for. Therefore, the impugned order directing the matter to be remanded to the original authority in the light of decision of the Apex Court in the case of Canon India Private Ltd. is set aside - appeal allowed - decided in favor of Revenue.

Summary

Issues:
1. Remand of the matter by the Commissioner (Appeals) based on the judgment of the Hon'ble Apex Court in Canon India case.
2. Validity of the show cause notice issued by the Joint Commissioner of Customs (SIIB).
3. Payment of duty and penalty by the respondent.
4. Jurisdiction of the Commissioner (Appeals) in remanding the matter.

Analysis:
1. The case involved the respondent being ordered to pay a duty amount due to pilferage of goods from their CFS without filing a Bill of Entry. The respondent paid the duty and penalty imposed but appealed against the duty demanded. The Commissioner (Appeals) remanded the matter based on the judgment in Canon India case. The Department filed an appeal against this remand.

2. The Department argued that the show cause notice issued by the Joint Commissioner of Customs (SIIB) was legal, and the remand order by the Commissioner (Appeals) exceeded jurisdiction. The Department sought to set aside the remand order and restore the original authority's decision. The respondent, however, had paid the duty and penalty, accepting the liability, and did not wish to contest further.

3. The respondent had paid the duty amount confirmed in the Order-in-Original and the penalty imposed under the Handling of Cargo Regulations. The respondent did not contest these payments and had accepted the liability, indicating that there was no dispute remaining in the matter.

4. Upon hearing both sides, the Tribunal found that the appeal filed by the Department had merits. The Tribunal held that the remand directed by the Commissioner (Appeals) was unnecessary, especially when the duty and penalty had been paid by the respondent. The Tribunal set aside the remand order, allowing the original authority's decision to stand.

In conclusion, the Revenue Appeal was allowed, and no consequential reliefs were granted. The Tribunal found that the remand order was unjustified given the payment of duty and penalty by the respondent, and therefore set it aside, upholding the original authority's decision.