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TMI Blog2016 (4) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... ility on the imported goods are concerned. Therefore, by referring Hon’ble Supreme Court’s decision in CC (Preventive) vs. Aafloat Textiles (I) P. Ltd. [2009 (2) TMI 75 - SUPREME COURT], since fraud was involved, in the eye of law such documents had no existence. Since the documents have been established to be forged or fake, obviously fraud was involved and that was sufficient to extend the period of limitation. Confiscation of goods in lieu of redemption fine - Impugned goods were neither seized nor released on provisional basis in terms of bond executed by the importer - Held that:- No redemption fine can be imposed in the above situation. Hence, imposition of redemption fine on the goods which were never available for confiscation is not legally sustainable. Imposition of penalty - Section 112 of the Customs Act - Goods liable for confiscation in view of irregular claim for exemption - Held that:- 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 factual context. Since, wrong claim of exemption will attract provisions for confiscation of goods, penalty under Section 112 will get at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edemption on payment of fine of ₹ 40 lakhs; confirmed customs duty demand of ₹ 2, 40, 67, 315/-; imposed penalty of ₹ 10 lakhs on OCIL, 50 lakhs each on Shri Nanda Kumar and Shri Rakesh Yadav who were found responsible for the forged document. 3. In respect of the goods imported through ICD Tughlakabad, he denied the exemption under the said notification; ordered confiscation of imported goods valued at ₹ 3,59,91,879/- and allowed their redemption of payment of fine of ₹ 30 lakhs; confirmed customs duty payment of ₹ 1,84,66,713/-; imposed penalty of ₹ 5 lakhs on OCIL; imposed penalty of ₹ 40 lakhs each on Shri Nanda Kumar and Shri Rakesh Yadav. 4. The Revenue is in appeal against the above order of the Learned Commissioner against non-imposition of penalty equal to the customs duty under Section 114A of the Customs Act, 1962 on OCIL and non-imposition of penalty on ICICI Bank Ltd. under Section 112 (a) of the Act. 5. OCIL is in appeal against the said order and pray for setting aside the whole order of denying exemption and imposing penalties on them. 6. We have heard both the sides extensively. The following points requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch 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 forgery and hence, there is no willful mis-statement on their part cannot be accepted in so far as the correct duty liability on the imported goods are concerned. Here, we may refer to Hon ble Supreme Court s decision in CC (Preventive) vs. Aafloat Textiles (I) P. Ltd. reported in 2009 (235) E.L.T. 587 (S.C.). The Hon ble Supreme Court observed that since fraud was involved, in the eye of law such documents had no existence. Since the documents have been established to be forged or fake, obviously fraud was involved and that was sufficient to extend the period of limitation . 9. Regarding confiscation of imported goods and imposition of redemption fine, we find the impugned goods were neither seized nor released on provisional basis in terms of bond executed by the importer. No redemption fine can be imposed in a situation, where neither the goods are in the custody of the department nor they were provisionally released under the proper bond. As such, we find imposition of redemption fine on the goods which were never available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appellant executing a bond. Since the goods were released on a bond the position is as if the goods were available. The ratio of the above decision cannot be understood that in all cases the goods were permitted to be cleared initially and later proceedings were taken for under-valuation or other irregularity, even then redemption fine could be imposed. We are, therefore, not inclined to accept the contention raised by the appellant on this issue and set aside the redemption fine. 13. The reliance of learned counsel for the revenue upon the provisions of Section 125 of the Act is also mis-conceived. Section 125 of the Act is applicable only in those cases which have been cleared by the concerned authorities subject to furnishing undertaking/bond etc. However, in the present case, admittedly, the goods were cleared by the respondent-authorities without execution of any bond/undertaking by the assessee. Thus, in view of the fact and circumstances of the case, we find no error in the impugned orders. No substantial q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 factual context. Since, wrong claim of exemption will attract provisions for confiscation of goods, penalty under Section 112 will get attracted. The notice invoked Section 114A for imposing penalty equal to duty. Final proviso to the said section mandates that in case of penalty levied under Section 114A no penalty shall be levied under Section 112 or Section 114. Here, it is relevant to note the observation of Hon ble Supreme Court in J.K. Industries vs. Chief Inspector of Factories and Boilers - (1996) 6 SCC 665 The omission or commission of the statutory breach is itself the offence. Similar type of offences based on the principle of strict liability, which means liability without fault or mensrea, exist in many statutes relating to economic crimes as well as in laws concerning the industry, food adulteration, prevention of pollution, etc. in India and abroad. Absolute offences are not criminal offences in any real sense but acts which are prohibited in the interest of welfare of the public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 28 (1) and Section 114A are similar the consequences of their application are not similar. One deals with duty demand and the other deals with levy of penalty. It is necessary for imposing penalty under Section 114A, the person liable to such penalty should be shown to be involved in collusion, misstatement etc. On careful perusal of the impugned order, we find that the findings of the Original Authority is based on correct appreciation of all material facts and hence there is no ground to interfere with such findings. Revenue relied on Hon ble Supreme Court s decision in Union of India vs. Rajasthan Spinning Weaving Mills reported in 2009 (238) E.L.T. 3 (S.C.). We find the Hon ble Supreme Court relying on their earlier decision in Dharmendra Textile held that application of Section 11AC would depend upon the existence or otherwise of the conditions expressly stated in the section, once the section is applicable in a case the concerned authority would have no discretion in quantifying the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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