9911796707
TMI Blog2000 (12) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Union of India v. Kumar Trading Co. - 2000 (121) E.L.T. 18 held that A close scrutiny of Section 111(o) pre-supposes that goods should be of exempted category, but there is no exemption notification pertaining to these goods has been brought to the notice of the court. Section 111(o) in the present case is wholly inapplicable. In fact, the goods were imported under the letter of credit issued by M/s. Nitu Enterprises of Nepal from another contracting party M/s. Kumar Trading Co. of Dubai. Goods were being transhipped from Dubai to Kathmandu via Calcutta Port. Therefore, the Customs Authority could not have checked these goods as there is no such provision for such goods being confiscated on a mere apprehension that they are bon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xercise of the power by the authority was non-existent or there is total lack of jurisdiction then Court can certainly interfere in such show cause notice. It has therefore been contended that Section 111(o) does not apply to a case where the imported goods are not exempted vide any exemption notification issued under Section 25 of the Customs Act, 1962. It has been pleaded that in the above final order, the Tribunal has upheld the penalty under Section 111(o) despite the fact that the imported goods were not exempt under any exemption notification but only under Section 69 of the Customs Act. Applying the ratio of this judgment of the High Court and there being no contrary judgment of any court on the subject, it has been prayed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TR 143 (SC)] 4. State of Kerala v. P.K. Syed Akbsar Sahib [1988 (34) E.L.T. 11 (SC)] 5. ITO v. Alwaye v. Ashok Textiles Limited [AIR 1961 (SC) 699] 6. Poothundu Plantations (P) Ltd. v. AITO, Chittoor, Kerala State [1996 (66) ECR 224 (SC)] 7. Bhagwandas Kevaldas v. N.D. Mehrotra [1959 (36) ITR 538 (Bom.)] 8. Walchand Nagar Industries Ltd. v. V.S.Gaitonde, ITO [1962 (44) ITR 260 (Bom.)] 9. B.V.K. Seshavataram, Bangaru Muralidhar, Bangaru Manikyam v. CIT [1994 (210) ITR 633 (A.P.)] 10. South Madras Electric Supply Corporation Ltd. v. First ITO, Tiruchirapalli [1969 (74) ITR 383 (Mad.)] 11. V.Govindraju Chetty v. CTO, Hassan [1968 (22) STC 46 (Mysore)] 12. Devendra Prakash v. ITO, Bareilly [1969 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants were aggrieved with the decision of the Tribunal the right course open to them was to file an appeal in the Supreme Court under the provisions of Section 35L. The appellants are in fact seeking, by moving an application for rectification of mistake, recall of the impugned order under Section 35C(12) on the basis of Supreme Court's subsequent decision. In their case an appeal for allowing the benefit of Notification No. 40/85 required to be filed and as such wherein appeal is to be filed, an application for rectification of mistake apparent from record cannot lie. If, a judgment which is already in existence and non-citing of the judgment cannot be a ground for receiving the order as per the judgment of Supreme Court, it is incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.T. of 1st October, 2000. Thus the decision of the Hon ble Calcutta High Court is of a date subsequent to the date of impugned order and therefore the decision of the larger bench of this Tribunal in the case of Gujarat State Fertilizers Chemicals Limited is squarely applicable to the facts of the present case. 8. Further we find that a second ROM filed against an impugned order is not maintainable. Further from the study of the impugned order, we find that in sub-para of para 34, the Tribunal had observed that It was contended for the appellants that since there was no violation of Section 111(j) and 111(o), therefore imposition of penalty was not warranted. We have considered the provisions of the above Sections of the Act. We are s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
