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2023 (5) TMI 871 - AT - CustomsLevy of penalty under the wrong provisions of the act - In the show cause notice, penalty was proposed to be levied under a set of provisions in the original order of the penalties were imposed under different set of provisions in the order in appeal penalty has been confirmed under different set of provisions - Benefit claimed on the DEPB Scrips for duty credit denied ab-initio - Confiscation - penalty - it was alleged that some units were issuing bogus invoices for passing fraudulent Cenvat credit to claim bogus rebate - HELD THAT - In the present case, there is no denial of the fact that the goods have actually been exported against the shipping bills filed by the appellant. The shipping bills are the prescribed documents for all the purposes of Customs and there is no case that these goods as declared in the shipping bills were misdeclared in any respect of value, description or quantity. To determine whether the DEPB licence has been obtained by fraud and to cancel the same the proper authority is DGFT as per Import-Export Policy. A letter dated 21.12.2009 was written to the Joint Director, DGFT, Surat by Assistant Commissioner, SIIB (Export) to cancel the said scrips. Joint Director has till date not issued any notice to the appellant for cancellation of the said scrips nor any proceedings have been initiated. In such a situation Customs authorities could not have adjudicated upon the issue holding that the DEPB scrips were obtained by way of fraud. Interestingly it is noticed that while the show cause notice proposes imposition of penalty under Sections 114, 114A and 114AA of the Customs Act. Order-in-original has been passed imposing penalty under Sections 114A, 114AA and Section 112(a) and (b). In the impugned order, penalty has been upheld under Section 112(a) and (b) and also under Section 114AA of the Customs Act, while holding that the goods were liable for confiscation under Section 113(d) and (i) of the Customs Act. Show cause notice specifically provided for imposition of penalty under Section 114 - None of the authorities i.e. adjudicating authority or the appellate authority, have held that penalty to be imposed under the said section. On the contrary they have imposed penalty under Section 112(a) and (b) of the Customs Act, which are in any way not applicable as they are in relation to the imported goods and not in relation to the export of goods. For contravention leading to confiscation under Section 113(d) and (i) penalty under Section 114 has been provided for. Penalty under Section 114AA has also been imposed on the appellant. The reliance placed by learned AR on the decision in the case of SELECTIVE MINERALS COLOUR INDUSTRIES PVT LTD GILROY RODRIGUES VERSUS COMMISSIONER OF CUSTOMS (EXPORTS) , NHAVA SHEVA 2017 (3) TMI 701 - CESTAT MUMBAI is totally misplaced as in the said case where it was held that the decision of the original authority to withhold the approval for allowing credit does have the sanctity of law. It is also seen that the original authority had permitted conversion of the said shipping bills to free status. Accordingly, denial of credit alone would have sufficed; more so, in the absence of any allegation of suppression or misdeclaration in the proceedings before the adjudicating Commissioner. For this reason, there is no justification for either the confiscation of goods or the imposition of penalties. For this reason, the impugned order is modified by setting aside the confiscation as well as penalties imposed on both the appellants. - The order of the Tribunal is based on the actual clarification given by the Director General of Foreign Trade in the said matter. In the present case, it is not the case of the erroneous mention of the provisions of the Act under which penalties have been imposed. Show cause notice has stated different provisions for imposition of penalty. Adjudicating authority imposed penalty under different provisions and the appellate authority modified the same under different provisions as seen. It is not the case of wrong mention but it is a case of a conscious decision taken under which penalty has been imposed and upheld. These decisions do not advance the case of the Revenue in this regard. The decision in the case of M/S MERCEDES BENZ INDIA PRIVATE LIMITED, M/S O.A. ASSOCIATES, PASHUPATI ACRYLON LIMITED VERSUS COMMISSIONER OF CUSTOMS, DELHI, ADDITIONAL DIRECTOR GENERAL (ADJUDICATION) , NEW DELHI, DIRECTORATE OF REVENUE (INTELLIGENCE) OTHERS 2020 (2) TMI 437 - CESTAT NEW DELHI applies in the present case because the issue is not in regard to upholding penalty under Section 114AA of the Customs Act in respect of export of goods, but the issue is whether penalty could have been imposed under the provisions of a section which was not even existent at the time when the offence was alleged to be committed - Similarly, the case of M/S. MUNJAL SHOWA LTD. VERSUS COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE (DELHI IV) AND M/S. FRIENDS TRADING CO. VERSUS UNION OF INDIA AND ORS. 2022 (9) TMI 1076 - SUPREME COURT is with regard to the penalties imposed on the persons importing the goods under DEPB scrips found to be forged and fake. Appellant is neither an importer nor has claimed any benefit of any exemption under any DEPB scrips found to be forged and fake. In such a situation the said judgment also does not advance the case of Revenue. Appeal allowed.
Issues Involved:
1. Confiscation of exported goods under Section 113(d) and Section 113(i) of the Customs Act, 1962. 2. Imposition of penalties under Sections 112(a), 112(b), 114A, and 114AA of the Customs Act, 1962. 3. Validity of DEPB licenses obtained through fraudulent means. 4. Jurisdiction of Customs authorities versus DGFT in determining the validity of DEPB licenses. 5. Applicability of penalties under sections not mentioned in the show cause notice. 6. Retroactive application of Section 114AA of the Customs Act, 1962. Detailed Analysis: 1. Confiscation of Exported Goods: The Commissioner (Appeals) upheld the adjudicating authority's decision that the exported goods were liable for confiscation under Section 113(d) and Section 113(i) of the Customs Act, 1962. The goods were found to be misdeclared, with bogus ARE-1s and invoices, and were not manufactured at the stated addresses. Consequently, the goods were deemed liable for confiscation. 2. Imposition of Penalties: The adjudicating authority imposed various penalties: - Penalty of Rs. 21,98,806/- on M/s. Daffodils Exports under Section 114A. - Penalty of Rs. 3,00,000/- on Shri Ayush M Agarwal under Section 112(a) & (b). - Penalty of Rs. 3,00,000/- on M/s. Daffodil Exports Impex under Section 114AA. - Penalty of Rs. 3,00,000/- on Shri Ayush M Agarwal under Section 114AA. The Commissioner (Appeals) upheld these penalties, stating that the appellants had submitted false documents and were involved in fraudulent activities. 3. Validity of DEPB Licenses: The investigation revealed that the DEPB licenses were obtained fraudulently using fake ARE-1s and invoices. The Commissioner (Appeals) noted that the appellants had knowingly purchased bogus ARE-1s and claimed duty benefits fraudulently, making the DEPB licenses void ab initio. 4. Jurisdiction of Customs Authorities vs. DGFT: The Customs authorities could not adjudicate on the validity of DEPB licenses, which falls under the jurisdiction of the DGFT. The DGFT had not cancelled the DEPB licenses, and no proceedings were initiated against the appellants for cancellation. Therefore, the Customs authorities' decision to impose penalties based on the alleged fraud was questioned. 5. Applicability of Penalties Under Different Sections: The show cause notice proposed penalties under Sections 114, 114A, and 114AA, but the adjudicating authority imposed penalties under Sections 114A, 114AA, and 112(a) & (b). The appellate authority upheld penalties under Sections 112(a) & (b) and 114AA, which were not part of the original proceedings. The Tribunal found this to be a misapplication of the law, as penalties should align with the provisions cited in the show cause notice. 6. Retroactive Application of Section 114AA: The Tribunal noted that Section 114AA, inserted on 13.07.2006, could not be applied retroactively to acts committed before its enactment. The penalties imposed under Section 114AA for actions taken between 01.09.2004 to 31.12.2004 were therefore invalid. Conclusion: The Tribunal allowed the appeals, finding that: - The DEPB licenses' validity should be determined by the DGFT, not Customs authorities. - Penalties under Sections 112(a) & (b) were improperly imposed as they pertain to imports, not exports. - Section 114AA could not be applied retroactively. - The Customs authorities overstepped their jurisdiction by adjudicating on the validity of DEPB licenses without DGFT's intervention.
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