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TMI Blog2018 (6) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... ted before arriving at the quantum of redemption fine. In these circumstances, we have no option but to set aside the redemption fine imposed and remand the matter to the original adjudicating authority to conduct the necessary market enquiry before quantifying the redemption fine. Penalty of ₹ 10,000/- has been imposed on the main appellant and amount of penalty has been imposed on Dr. S. Krishnamurthy, MD - Held that:- Considering the facts of the case that the appellants imported the machine and failed to follow the post importation conditions, the penalty of ₹ 10,000/- imposed is sufficient. Appeal disposed off. - Appeal No. C/1090 & 1091/2009 - A/86439-86440/2018 - Dated:- 18-5-2018 - MRS. ARCHANA WADHWA, MEMBER (J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 64/ 88-Cus. Revenue has issued the notice under Section 28(1) of the Customs Act, 1962. However, the impugned order confirmed the duty under Section 125(2) of the Customs Act, 1962. Since the appellants have admittedly violated the condition of notification, the goods are liable to confiscation and order which relates to so far as confiscation, is upheld. In the case of Fortis Hospital (supra) relied by the appellants, in para 19 of the said order, following has been observed: - 19. It is not that the Department is without any remedy. We have gone through the provisions of Notification No. 64/88, dated 1-3-1988. As pointed out above, importer would be exempted from payment of import duty on hospital equipment only when the condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under Section 28(1) of the Customs Act was issued. In fact, Hon'ble Apex Court in para 23 of the said order observed as follows: - 23. Accordingly, we allow the appeal and set aside the order passed by the High Court. We make it clear that it would still be open to the Department to take appropriate independent action against the appellant for payment of import duty, in case it is still within period of limitation. It can be seen that Hon'ble Apex Court has held that demand of duty under Section 125(2) cannot be enforced unless the goods are redeemed by the noticee, however, Revenue is free to take action to demand duty for violation of the condition of notification. In the instant case, it is seen that the show-cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. I do not find any reason to issue a further SCN in this matter because an the facts relevant are already given in the SCN and the duty demanded is as per the undertaking given by the importer. Section 28(1) of the Customs Act objected to by the importer is not being invoked in the order. The show-cause notice already incorporates the proposal and correct provision, namely section 111 (0), for confiscating the goods because post import conditions are not complied with. The reasons for confirming the demand under Section 125(2) instead of Section 28(1) are recorded in para 11.4.2 of the order, which reads as under: - I am in agreement with the contention that in the facts of the case allegation of willful suppression is not app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of Section 125(1) as well as 125(2) and observed that order of payment of duty under Section 125(2) would be an integral part of the proceedings relating to confiscation and consequential orders thereon. This order, however, must be pursuant to a show cause notice and adjudication. The court was not dealing with the question as to whether sub-section (2) of Section 125 would be applicable even when option to pay fine in lieu of confiscation is not exercised. It can be seen that the Hon ble Apex Court has noticed that in case of Jagdish Cancer and Research Centre (supra), notice by the competent officer was not issued in the time prescribed under Section 28(1). In the instant case, it is seen that notice under Section 28(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . steel Ltd. v. Union of India, 1978 (2) E.L.T. J 355 (S.C.), wherein it has been held that if the exercise of a power can be traced to a legitimate source, the fact that the same was purported to have been exercised under a different power does not vitiate the exercise of the power in question. The learned Counsel for the petitioner further cited the judgment in the case of Collector of Central Excise, Calcutta v. Pradyumna steel Ltd., (2003) 9 SCC 234 = 1996 (82) E.L.T. 441, wherein it has been held that mere mention of a wrong provision of law when the power exercised is available even though under a different provision, is by itself not sufficient to invalidate the exercise of that power. 24. Thus, mention of wrong Rule in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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