9911796707
TMI Blog2016 (4) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... 97 as amended. The appellant-importer (OCIL) availed loan through the ICICI Bank Ltd. for implementing the project under World Bank. On receipt of certain information regarding misuse of the exemption under the said notification by various importers, investigations were carried out by the officers of Directorate of Revenue Intelligence, New Delhi. The import made by OCIL claiming the benefit of Notification No. 84/97-CUS is also part of the said investigation. After inquiry, it was revealed that the Project Implementing Authorities Certificate (PIAC) required for claiming the said exemption was a fabricated/forged document. Accordingly, proceedings were initiated against OCIL to deny the exemption and to impose penalties. The proceedings concluded through the order passed by the Learned Commissioner. He decided in a combined order both the imports made by OCIL through JNPT and ICD, Tughlakabad. For imports through JNPT he denied the benefit of the above mentioned notification to OCIL; ordered confiscation of imported goods valued at Rs. 4,69,07,529/- and allowed their redemption on payment of fine of Rs. 40 lakhs; confirmed customs duty demand of Rs. 2, 40, 67, 315/-; imposed penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the said notification. Later, it was revealed that signatures of the Competent Authority in the Line Ministry were actually forged by some other official in collusion with an Agent who acted as a middle man for OCIL to obtain these certificates. 8. We have carefully perused the impugned order. The admitted fact is that the goods are not eligible for the concession under the said notification as the certificates are not proper and genuine. They are bearing forged signature of the competent officer as such it is very clear that the goods are not eligible for any concession for the rate of duty based on such forged certificates. The contention of OCIL that the demand for duty arising out of such forged document is hit by time bar is not tenable. In fact, on being informed by the Investigating Officer about forgery and illicit nature of import, OCIL deposited the full duty liability before even the adjudication of the case. The concession on the goods cannot be claimed based on forged documents irrespective of who is responsible for such forgery. Submission of such forged document for claiming exemption is a clear case of mis-statement. OCIL's plea that they are not involved in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a bond, undertaking to produce the goods when called for. In such situation, the Hon'ble Supreme Court held that redemption fine can be imposed if the goods are already cleared. Since, such release of goods in on execution of bond such fine was justified. We find that the Hon'ble Punjab & Haryana High Court in CC, Amritsar vs. Raja Impex (P) Ltd. reported in 2008 (229) E.L.T. 185 (P&H)=2008-TIOL-280-HC-P&H-CUS held:- :12. It may also be noticed here that in the case of M/s. Weston Components Ltd. Vs. Commissioner of Customs, New Delhi (supra), the goods were released to the assessee on an application made by it and on the execution of a bond by the assessee and in those circumstances, the Hon'ble Apex Court held that the mere fact that the goods were released on the bond being executed would not take away the power of custom authority to levy redemption fine. A reading of the judgment/order of the Hon'ble Apex Court in M/s. Weston Components Ltd. Vs. Commissioner of Customs, New Delhi (supra), would show that the Apex Court has taken the view that redemption fine can be imposed even in the absence of the goods were released to the appellant on an application made by it and on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 112. The Original Authority observed that the goods have become liable for confiscation in view of the irregular claim for exemption and hence, the penalty under Section 112 is attracted. While considering the penalty under the said section, the Original Authority also examined the non-invocation of the said section in the show cause notice. We find that penalty was sought to be imposed in the show cause notice under Section 114A. After finding that the ingredients for imposing such equal penalty are not available in the present case, the Original Authority imposed penalty under Section 112 which apparently deals with much less serious offence. The Original Authority had imposed penalty of Rs. 10 lakhs and Rs. 5 lakhs under Section 112 on OCIL. Regarding non mentioning of Section 112 in the show cause notice, we take note of the detailed allegations made in the same. In the facts and circumstances of the case the notice originally proposed demand of duty, confiscation of goods and penalty under Section 114A. In the present case we find while the goods were found to be not eligible for concession, in view of forged certificate, the role of the importer has to be seen in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to be charged on them based on the valid claims. In the present case, the goods are not eligible for concession as the supporting certificate for such exemption was not genuine. As such the duty which escaped assessment by presentation of the improper and forged document has to be paid by the importer. 15. Regarding the question of penalty on the importer, the same will stand in a different footing. Unlike duty which is on the goods, penalty is on the importer and it is necessary to show that the importer has rendered himself by his act of collusion, willful mis-statement or mis-representation liable for penalty under Section 114A. In the present case, such ingredients are not proven so the penalty under Section 114A cannot be imposed on the importer (OCIL). Revenue pleaded that when the demand has been confirmed invoking extended period it automatically follows equal penalty has to be imposed. We have already noted the facts and circumstances of the case and how they are different from a case where collusion, misstatement etc. are attributable to the person who claimed any improper concession resulting in short payment of duty. Though the expressions used in proviso to Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
