2006 (8) TMI 16 - AT - Central Excise

Central Excise An issue decided earlier by Commissioner Tribunal, S.C. cannot be reopened by issue a fresh show cause notice if no fresh material found which can be relied upon Section 111(d) of Customs Act, 1962 and penalty u/s 114 ibid not attracted for export under DEPB claim

Summary

Issues Involved:
1. Confiscation under Section 113(d) of the Customs Act, 1962.
2. Imposition of penalty under Section 114(i) of the Customs Act, 1962.
3. Confiscation under Section 111(o) of the Customs Act, 1962.
4. Recovery of excess DEPB Credit under Section 28 of the Customs Act, 1962.
5. Imposition of penalty under Section 114A of the Customs Act, 1962.
6. Imposition of penalties on other noticees.

Detailed Analysis:

1. Confiscation under Section 113(d) of the Customs Act, 1962:
The Commissioner ordered the confiscation of goods covered by twelve DEPB shipping bills, alleging over-invoicing to obtain excess DEPB credit. The Tribunal found that the same charges were previously settled in favor of the appellant by the Commissioner, Tribunal, and the Supreme Court. The new evidence presented was deemed unsubstantial and unreliable. Therefore, the Tribunal concluded that reopening the case was not justified, and the confiscation order was not upheld.

2. Imposition of Penalty under Section 114(i) of the Customs Act, 1962:
The Commissioner imposed a penalty of Rs. 10 lakh on the appellant company. The Tribunal found no fresh substantive evidence to support the allegations of over-valuation. As the previous findings were in favor of the appellant, the imposition of the penalty was deemed unwarranted and was set aside.

3. Confiscation under Section 111(o) of the Customs Act, 1962:
The Commissioner ordered the confiscation of goods imported against six DEPB licenses and imposed a redemption fine of Rs. 25 lakh. The Tribunal found that the appellant had not made any imports under the said DEPB licenses, and the DEPB licenses were still valid. Thus, the confiscation and the redemption fine were found to be illegal and were set aside.

4. Recovery of Excess DEPB Credit under Section 28 of the Customs Act, 1962:
The Commissioner ordered the recovery of excess DEPB credit along with interest. The Tribunal held that Section 28 of the Customs Act does not apply to DEPB credit, as it is not duty. The DEPB licenses were issued by the statutory authority and were still valid. Therefore, the recovery order was deemed without jurisdiction and was set aside.

5. Imposition of Penalty under Section 114A of the Customs Act, 1962:
The Commissioner imposed a penalty of Rs. 1,00,35,562 on the proprietor of the appellant company. The Tribunal found no basis for the duty demand, and hence, the penalty under Section 114A was not upheld and was set aside.

6. Imposition of Penalties on Other Noticees:
The Commissioner imposed penalties of Rs. 10 lakh each on three other noticees. The Tribunal did not address these penalties as the noticees were not before the Tribunal.

Conclusion:
The Tribunal found that the new evidence presented was unsubstantial and unreliable, and the previous findings in favor of the appellant could not be disturbed. The confiscation orders, penalties, and recovery of excess DEPB credit were set aside. The appeals were allowed, and the impugned orders were deemed not sustainable in law.