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TMI Blog2017 (8) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... ere are twin Sections, Section 112 and Section 114, to impose penalty for improper import of goods and penalty for attempt to export goods improperly, respectively. Apart from that, Section 114 AA would be invoked in a situation where a person knowingly had given a false declaration. The expression where no express penalty is elsewhere provided for "such contravention", in Section 117 makes it clear that it is a penalty of residuary nature - In the present case, the facts narrated in the Show-cause notice would show that M/s Santosh Radio Products and its Partner Shri Kishan Kumar Kejriwal had knowingly made incorrect declaration, which is covered under Section 114 (AA) of the Act. Penalty on M/s Santosh Sales Pvt. Ltd. and its Managing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kejriwal (Managing Director of M/s Santosh Sales Pvt. Ltd.) under Section 112 (a) and 112 (b) of the Act, for their acts of omission and commission, which appear to render the said goods liable for confiscation under the provisions of Section 111 (m) and 119 of the Act. 2.2 By the impugned order, the Commissioner of Customs (Port), Kolkata, ordered confiscation of 14,04,000 pcs. of CDRs mis-declared as DVDRs (BG) covered under the above mentioned Bills of Entries under Section 111 (m) of the Act, it has also confiscated 7,56,000 pcs. of DVDRs having used for concealment of the mis-declared goods under Section 119 of the Act. As the goods have already been allowed provisional release, Redemption Fine of ₹ 23,50,000/- was imposed. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aration of goods and confiscation under Section 111 (m) would follow automatically. It is also submitted that the DVDRs were kept above the CDRs packing for concealment of goods and confiscation under Section 119 is justified. Regarding imposition of penalty, the ld.A.R. drew the attention of the Bench too the relevant portion of the adjudication order to show that the Adjudicating Authority proceeded on various decisions of the Hon ble Supreme Court. 5. Heard both sides and perused the appeal records. 6. In the present case, there is no dispute that the appellant misdeclared 14,04,000 pcs. of CDRs in two consignments as DVDRs. Shri Munna Lal Kejriwal in his statement dt. 04.03.2008 and Shri Kishan Kumar Kejriwal in his statement date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le for confiscation and the importer is liable for penalty. The goods were coming from Ghana and in the invoice, the country of origin was shown as Ghana by the exporter. It is also observed that by misdeclaring the country of origin, there is no change in amount of duty and therefore, it cannot be said that mis-declaration is with intent to evade payment of duty. 7. I find that from the statement of the appellants that they had instructed the suppliers for mis-declaration of goods with intent to evade payment of Anti Dumping Duty and therefore, this case law would not be applicable to the present case. 8. The Adjudicating Authority observed that the carton boxes marked as DVD + R (AG) were used by the importer as bait to mislead the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of such act or who acquires possession of or in any way is concerned in carrying/removing, etc. shall be liable for penalty. The Adjudicating Authority imposed penalty under Section 114 AA of the Act on M/s Santosh Radio Products and its partner, Shri Kishan Lal Kejriwal. Section 114 AA provides for penalty for use of false and incorrect materials. If a person knowingly or intentionally makes, signs or uses or causes to be made, signed or used any declaration, statement or documents, which is false or incorrect, shall be liable to penalty. The Adjudicating Authority further imposed penalty on M/s Santosh Sales (P) Ltd. and its Managing Director, Shri Munna Lal Kejriwal under Section 117 of the Act. Section 117 provides penalties for co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Hon ble Tribunal in Para No.6 has held thus if the action is correcting law, reliance on a wrong provision of law would not make the order invalid. This is the position emerging from the decision of the Hon ble Supreme Court in the case of J.K.Steel Ltd. Vs. Union of India Others : 1978 (2) ELT 1355 and N.B.Sanjan, Assistant Collector of Central Excise, Bombay and Others Vs. Elhinstone Spinning : 1978 (2) ELT J 1399. 12. The ld.Counsel strongly relied upon the decision of the Tribunal in the case of Atul Ltd. Vs. Commr. of Customs (Export), Mumbai : 2016 (340) ELT 603 (Tri.-Mumbai) , where it is observed that penalty under Section 114A is not imposable when Show-cause notice invoked Section 112 (a). In that case, the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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