2000 (10) TMI 481 - AT - Customs

Summary

Issues:
Violation of provisions under Advance License scheme and EXIM Policy 1992-97, imposition of duty, interest, and penalty under Customs Act, 1962, appeal against penalty under Section 114A, typographical error in the order, consideration of Modvat credit certificates.

Analysis:
The judgment by the Appellate Tribunal CEGAT, Chennai addressed the violation of provisions under the Advance License scheme and the EXIM Policy 1992-97. The appellants, M/s. Dhevi Super Leathers, transferred their advance DEEC license to another entity, M/s. Bangalore Sales Corporation, who imported goods utilizing modvat credit. This action was deemed a violation of para 12 of the Handbook of Procedures of the EXIM Policy, leading to the wrongful availment of duty-free benefits. The Commissioner imposed duty and interest on the importer, along with a penalty on the license holder under Section 114A of the Customs Act, 1962, while refraining from imposing penalties under Sections 112 and 114 simultaneously.

The appeal filed by M/s. Dhevi Super Leathers contested the imposition of penalty under Section 114A. The appellant's advocate argued that the penalty should not apply as per the specific provisions of Section 114A, which only applies when duty liability is determined under Section 28 of the Customs Act. The Tribunal agreed with this argument, setting aside the penalty under Section 114A due to the duty being determined on M/s. Bangalore Sales Corporation and not on the appellants.

Regarding a typographical error in the order, the Department's representative suggested setting aside the order for de novo adjudication. However, the Tribunal found that the Commissioner's order was clear in its decision not to impose penalties under Section 112, citing Section 114A as precluding such dual penalties. The Tribunal disagreed with the Department's argument that a typographical error necessitated a remand.

The Tribunal also disagreed with the Commissioner's interpretation that penalty under Section 114A precludes penalty under Section 112. They highlighted that Section 114A pertains to duty payers under Section 28, while Section 112 applies to other individuals involved with the goods. The Tribunal emphasized that the Commissioner's finding on this matter was incorrect.

Furthermore, the Tribunal noted the submission of 'no Modvat availed' certificates, indicating that the Commissioner should have considered this evidence. However, as the certificates were not evaluated, the Tribunal refrained from making any findings on this submission. Ultimately, the Tribunal allowed the appeal by M/s. Dhevi Super Leathers, setting aside the penalty imposed under Section 114A of the Customs Act, 1962.