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TMI Blog2015 (7) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by the appellants, the finding of misdeclaration against them is untenable. In this case, the investigating agency (DRI) also ventured into an inquiry as to what should be the assessable value of the goods and as to whether the importer had misdeclared the value of the goods. The importer never filed any Bill of Entry declaring the value and other particulars of the goods. Hence it is absurd for the DRI to have ventured to such an exercise. Surprisingly, this absurdity was sustained by learned Commissioner in the impugned order. As the appellant has not filed any Bill of Entry neither placed order for supply of the impugned goods to the supplier/exporter, the penalty under Section 112(a) of the Customs Act is not imposable on the appellant. - Impugned order is set aside - Decided in favour of assessee. - Appeal No. C/551/2009-CU(DB) - F. Order No. 52082/2015 - Dated:- 2-7-2015 - Hon ble Mr. Ashok Jindal, Member (Judicial) And Hon ble Mr. R.K. Singh, Member (Technical),JJ. For the Appellant : Shri S. Vasudev, Advocate For the Respondent : Shri Amresh Jain, D.R. ORDER Per Ashok Jindal : The appellant is in appeal against the impugned order imposing pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o polythene bags and polythene sheets which were mis-declared as plastic scrap. The statement of Shri Jitender Jaspal, Manager of the appellant was recorded on 11.12.2007 and thereafter the said containers were seized and a Show Cause Notice was issued to the appellant for confiscation of the goods contained in those containers under Section 111(d) (m), (n) and (o) of the Customs Act, 1962 and for imposition of penalty under Section 112(a) and 114(a) of the Customs Act, 1962. The matter was adjudicated the goods contained in 22 containers were absolute confiscated and penalty under Section 112(a) of the Customs Act, 1962 was imposed on the appellant to the tune of ₹ 20 lakhs. The appellant is against the said order before us. 5. The ld. Counsel for the appellant submits that in this case the appellant has not filed any Bill of Entry as they have not placed any order on the supplier and they are not the owner of the said goods. Therefore, penalty under Sections 112(a) of the Customs Act, 1962 is not imposable as the appellant has not rendered any act of omission or commission. He further submits that for confiscation the provisions of Section 111(d), (m), (n) and (o) were i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the name of the appellant cannot be presumed that the appellant has ordered for the supply of the impugned goods. In the absence of contrary evidence, the appellants were not in any way involved rendering the goods liable for confiscation. Hence, the penalty is not be imposable on the appellant. Revenue has failed to prove that the action of the appellant has rendered the goods liable for confiscation. To support this contention, he relied on the decision of Amba Woolen Mils CCE, Bombay 1998 (99) ELT 352 (Tri.) and CCE Vs. Freight Systems (P) Ltd. 2012 (286) ELT 231 (Tri.-Mum). He also took the support of the decision of this Tribunal in the case of Garima Trade Services Ltd. Vs. CC, Visakhapatnam 2002 (146) ETL 150 (Tri.-Chennai), Nalakath Spices Trading Co. Vs. CC, Cochin 2007 (213) ELT 283 (Tri.-Bang.) and CC, New Delhi Vs. Sewa Ram Bros. 2003 (151) ELT 344 (Tri.-Del.), to say that once the title of the impugned goods is relinquished, no penalty is imposable. 6. On the other hand, ld. AR argued that on 28.11.2006, as the investigation was conducted in the premises of the appellant wherein it was felt that the appellant is involved in under valuation of imported pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no provision that if goods has not been ordered and the same has been arrived, the person (in whose name the documents are) is required to approach to Revenue to say that I am not the owner of the goods. In this case, when appellant is not owner of the said goods, the Revenue is at liberty to deal the goods in any manner by way of absolute confiscation or by confiscation and allow to be redeemed on payment of redemption fine who claimed the owner of the goods or without confiscation of the goods to be released to the person who claimed the owner of the goods. In this case, admittedly the appellant never owned the goods nor filed Bill of Entry. 10. In these set of facts, it is to be seen that the penalty can be imposed on the appellant under Section 112(a) of the Act for violation of Section 111(d), (m), (n) and (o) of the Act or not, Therefore, to impose penalty under Section 111(d), (m), (n) and (o), we have to see provisions of the Act which are reproduced herein under : Section 111(d) in the Customs Act, 1962 (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... description was changed within in invoice or in the Bill of Entry or import manifest the same was sufficient to call for confiscation liability of goods under Section 111(m) of the Act as in that case the importer had not filed Bill of Entry which has been affirmed by the Hon ble Apex Court by holding that in such a situation where Bill of Entry is not the provision of Section 111(m) are not attracted. The only provision of Section 111(d) can be attracted in this case to say that the goods are attempted to be imported contrary in prohibition. We find that in this case, the ld. Counsel has relied on certain cases. 12. We find that in the case of Arya International (supra), this Tribunal has observed that in case the Bill of Entry was not filed declaring description or quantum of the goods and there is no other evidence on record showing the appellant s involvement in loading the goods at the exporters end. Therefore, the penalty was not imposed. The same view taken in Royal Impex (supra), wherein Tribunal has held as under: 4. After giving careful consideration to the submissions, we have to accept the appellants case. Any Bill of Entry was yet to be filed by the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X
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