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TMI Blog2015 (5) TMI 800X X X X Extracts X X X X X X X X Extracts X X X X ..... the following substantial questions of law: "(i). Whether the Customs, Excise and Service Tax Appellate Tribunal was justified in setting aside the penalty imposed under Section 112(a) of the Customs Act, 1962 without giving any reasons, when the adjudicating authority imposes deterrent penalty in order to stop the imports in violation of the Exim Policy (2002-2007)? (ii) Whether the Customs, Excise and Service Tax Appellate Tribunal was justified in reducing the redemption fine imposed under Section 125 of the Customs Act, 1962 without giving any reasons, when the adjudicating authority imposes fine in order to stop the imports in violation of the Exim Policy (2002-2007)?" 2. The brief facts of the case are as follows: The first respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made remanded the matter back to the Commissioner (Appeals) for fresh disposal after examining the issue in terms of Section 111(d) of the Customs Act. On remand, the Commissioner (Appeals), re-adjudicated the order and upheld the confiscation, redemption fine and penalty. The importer pursued the matter before the Tribunal. The Tribunal passed an order reducing the redemption fine and setting aside the penalty holding as follows: "2. I have heard both sides. I find force in the submission of the appellants that the Commissioner (Appeals) was only required to consider the provisions of Section 111(d) namely as to whether the import of second-hand capital goods without specific licence was valid. There was no mandate from the Tribunal reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Customs Act, it is apposite to extract the same for better clarity: "SECTION 111. Confiscation of improperly imported goods, etc. The following goods brought from a place outside India shall be liable to confiscation: (a) ...... (b) ...... (c) ...... (d) any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force; ...... (m) any goods which do not correspond in respect of value or in any other particular with the entry made under this Act or in the case of baggage with the declaration made under section 77 in respect thereof, or in the case of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty not exceeding the difference between the declared value and the value thereof or five thousand rupees, whichever is the greater; (iv) in the case of goods falling both under clauses (i) and (iii), to a penalty not exceeding the value of the goods or the difference between the declared value and the value thereof or five thousand rupees, whichever is the highest; (v) in the case of goods falling both under clauses (ii) and (iii), to a penalty not exceeding the duty sought to be evaded on such goods or the difference between the declared value and the value thereof or five thousand rupees, whichever is the highest." 7. A plain reading of Section 112 of the Customs Act makes it clear that once confiscation is ordered, levy of penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not plead ignorance of the facts. Further more, the respondent had not questioned the order of confiscation or the imposition of duty. Thus, the order of confiscation has attained finality and there is no discretion vested under Section 112(a) of the Customs Act and there is no requirement to record a finding that there has been any wilful misstatement or concealment or suppression of facts, as is found under Section 114A of the Customs Act. 13. In such view of the matter, the Tribunal was not right in setting aside the penalty imposed on the Managing Director under Section 112(a) of the Customs Act. Further, it has to be pointed out that under Section 112(a), any person, who, in relation to any goods, does or omits to do any act which act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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