9911796707
TMI Blog2006 (3) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... id circumstances, the matter does not require any fresh consideration by the Commissioner and therefore, the matter is not required to be remanded to the Commissioner as held by Member (Judicial)". 25. "So far as the question of penalty is concerned, the matter is referred to me for limited purposes whether the duty is required to be confirmed against the appellants and the penalty reduced as held by ld. Member (Technical) or the matter is required to be remanded to the Commissioner as held by Ld. Member (Judicial). It has not been referred to me on point of penalty. Though, ld. Advocate for the appellants raises an arguments at length on the point of penalty. Ld. Member (Judicial) has also mentioned in her order that the matter is remanded by me to the Commissioner to consider the fact of imposition of personal penalties upon the appellants in the light of the outcome of his decision on the availability of the Notification in question and in the alternative, in the light of the observations made in the preceeding paragraphs. The matter has been referred to me for limited purpose. So, I am not inclined to give my opinion on the question of penalty". 3. Before recording ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue relating to the reduced penalties was required to be decided by the learned Third Member. Unfortunately learned Third Member did not decide the same specifically. • In the aforesaid circumstances, the said learned Third Member is directed to decide the aforesaid point relating to the reduced penalties at an early date but positively within a period of four weeks from the date of communication of this order after giving reasonable opportunities of hearing to the petitioner herein. • In view of the aforesaid direction, subsequent final order passed by the learned Tribunal on 22-9-2005 cannot be sustained. The same is accordingly quashed. The learned Tribunal is directed to pass final order after disposal of the issue by the learned Third Member in terms of this order. With the aforesaid direction of this writ petition stands disposed of. There will however be no order as to costs. • Parties shall act on a signed Xerox copy of this Dictated order on the usual undertaking." As can be seen from the above direction of the Hon'ble High Court that the final order dated 22-9-05 is set aside and matter is listed before me with specific directions. 6. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the said products is now settled i.e. the said goods merits classification under Chapter Heading No. 0511.99. The ld. Member (J) in her separate order sought to remand the matter to the adjudicating authority to consider whether the appellant's 'said products' were eligible for exemption under Notification No. 163/94, dated 2-9-94 and reconsider the imposition of penalties on appellants. 10. I find that the Notification No. 163/94-Customs, dated 2-9-94 was rescinded/superceded vide Notification No. 47/96-Cus., dated 23rd July, 1996. The period of dispute in this case is from October 1998 to February, 2001. Since the exemption Notification No. 163/94-Cus., dated 2-9-94, was not available to the appellants, to my mind remanding the matter back to the adjudicating authority for deciding availability of exemption under Notification 163/94 would serve no purpose. Since it is not clear from the records of the case whether the rescinding/superceding Notification No. 47/96-Cus., dated 23rd July, 1996 was placed before Hon'ble Member (J) or not, to my mind had the said rescinding/ superceding notification been produced before the Hon'ble Member (J), she would have come to a diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of facts, the person who is liable to pay the duty or interest, as the case may be , as determined under sub-section (2) of section 28 shall also be liable to pay a penalty equal to the duty or interest so determined" Provided.... Provided... Provided.... Provided... Provided... • Section 112(a) : "who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such and act." It is undisputed that the penalty can be imposed under the above sections if the conditions as enumerated are satisfied for imposition of the penalty. 15. In this case, during the relevant period of imports, the appellants declared the said goods under Chapter Heading No. 2309.90, based on an order of the Commissioner (Appeals) in their own case and in respect of the very same 'said goods, imported at Mumbai. The order of the Commissioner (Appeals) in the appellants case at that time was based on the fact that other importers were also classifying the said products under Chapter Heading No. 23.09. As such, armed with the order of Commissioner (Appeal) in their favour, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
