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TMI Blog2012 (12) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... reated as imported goods is being raised apparently for the reason that duty at rate prescribed in Customs Tariff is being demanded. This is not the correct position. Duty being demanded is excise duty. Duty payable is calculated at rates prescribed in Customs Tariff. Imposition of Penalty - held that:- There are mitigating factors in favour of the appellant. Revenue has not been able to prove any mala fide intentions of the appellant - penalty imposed on the appellants is set aside - Thus appeal is allowed partially. - C/225/2007-SM(BR) - 720/2012-SM(BR)(PB) - Dated:- 8-6-2012 - Shri Mathew John, J. REPRESENTED BY : None, for the Appellant. Shri P.K. Sharma, DR, for the Respondent. [Order]. When the case was ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants cleared 120 drums containing 3200 kgs of Caffeine Anhydrous Natural for export to New York. Out of these 120 drums, 7 drums containing 175 kgs were not exported or otherwise accounted. On the quantity of Rs. 175 Kgs short accounted, the Revenue demanded duty payable to the extent of Rs. 36125/- along with interest and penalty. The Show Cause Notice was adjudicated confirming the duty demand along with interest and also penalty of Rs. 36,125 under Section 114(ii) of the Customs Act, 1962 read with Rule 26 of the Central Excise Rules, 2002. 6. Aggrieved by the order of the adjudicating authority the appellant filed appeal with Commissioner (Appeal) who did not give any relief. Aggrieved by the order of the Commissioner (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submits that in this case the appellant is bound to account for the goods imported without payment of duty after executing a bond. Further there is another bond executed to export the goods manufactured when goods are cleared without payment of duty from the factory. So the time limit under Section 28 will not apply from the date of clearance of goods from the factory. Since these are manufactured goods the time limit under section 11A of the Central Excise Act will apply (sic). The time limit under this provision is one year from date of clearance of duty. The ld. A.R. also submits there is no proof that the goods were lost from the custody of the custodian. It is a conjecture suggested by the appellant. This matter has not been examined b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imported goods is being raised apparently for the reason that duty at rate prescribed in Customs Tariff is being demanded. This is not the correct position. Duty being demanded is excise duty. 12. I do not see merit in the argument that the application for remission of duty was not considered because I see the order is mainly on the issue why remission claimed under Sections 13 and 23 of Customs Act is not applicable. 13. The contention that the goods were lost while in custody of the custodian at the port of export is only a claim. The evidence supporting it is a letter dated 6-12-2003 from Manager CFS-D Node to the effect that goods might have been cross stuffed and moved to some other destination. There is no clear proof in the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Act, there should be a clear finding as to the provision in Section 113 of the Customs Act under which the goods are liable to be confiscated. I do not see such clear finding in adjudication order. The other provision quoted is Rule 26 of Central Excise Rules. For invoking this provision also there has to be clear finding as to the provisions of the Central Excise Act or Rules under which the goods became liable to confiscation there is no such finding. 17. Further I am of the view that there are mitigating factors in favour of the appellant. Revenue has not been able to prove any mala fide intentions of the appellant. 18. So I set aside the penalty imposed on the appellants. 19. Thus appeal is allowed partially. (Pronounced o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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