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TMI Blog2019 (11) TMI 1285X X X X Extracts X X X X X X X X Extracts X X X X ..... der proviso to section 28 of the Customs Act, 1962. II. Customs duty demanded on the goods covered under 3 bills of entry amounting to Rs. 25,65,526/- is confirmed and the same should be recovered under proviso to section 28 of the Customs Act, 1962. III. Customs duty demanded on the goods covered under one bill of entry amounting to Rs. 19,539/- is confirmed and the same should be recovered under proviso to section 28 of the Customs Act, 1962. IV. Customs duty demanded on the goods covered under one bill of entry amounting to Rs. 2,85,559/- is confirmed and the same should be recovered under proviso to section 28 of the Customs Act, 1962. V. Interest at applicable rate demanded on Rs. 82,06,168/- is confirmed under section 28AB of the Customs Act, 1962. VI. The goods referred to at Sr.No. (I) to (IV) above valued at Rs. 51,37,342/- CIF is confiscated under section 111(d) and 111(o) of the Customs Act, 1962. A redemption fine of Rs. 12,84,285/- is imposed under Section 125 of the Customs Act, 1962 in lieu of confiscation. VII(i) Penalty of Rs. 82,06,168/- is imposed on M/s. Brimco Plastic Machinery Pvt. Ltd. under Section 114A of the Customs Act, 1962. VII(i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ick Enterprises, M/s Vinanyak Sales, M/s Gallium Inds. Ltd., M/s Roopam Trading Co., M/s Karuna Enterprises and M/s Darshan Enterprise (Respondent No 2 to 10) for importing roller bearings. Some of the importing firms were found to be the dummy companies floated by the Shri Anil B Garodia, MD of Respondent 1, Shri L K Vora, Authorized signatory and Shri Manharlal Vora. 2.4 After completion of investigations a Show Cause Notice No DRI/MZU/D/5/2000 dated 25.07.2003 was issued to the respondents seeking to recover the duty short/ not paid in respect of the clearances made using the said license, and for imposition of penalties. 2.5 The show cause notice has been adjudicated by the Commissioner by the impugned order referred in para 1 supra. Aggrieved by the impugned these appeals under consideration have been filed by the revenue. 2.6 Appeals were also filed by M/s Brimco Plastic Machinery Pvt Ltd (Respondent No 1) and Shri Anil B Garodia and Others. 3.1 We have heard Shri Ramesh Kumar, Assistant Commissioner, Authorized Representative for the Appellant Revenue. None appeared on behalf of respondents 3.2 Arguing for the revenue learned Authorized Representative while reitera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The relevant paragraphs of the Apex Court decision are reproduced below: "9. Learned counsel for the Centre draws our attention to Chapter XIV of the Customs Act and submits that it relates to confiscation of goods and conveyances and imposition of fines. It does not relate to imposition or demand of customs duty. Section 124 and 125 also fall in Chapter XIV. Section 124 provides for issue of show cause notice before confiscation of goods and Section 125 relates to payment of fine in lieu of confiscation. Section 28 of the Act which falls in Chapter V provides for notice for payment of duties which has been demanded by the notice in this case. Therefore, it is submitted on behalf of the Centre that demand of customs duty and the order for payment of the same is relatable to only Section 28(1) of the Customs Act, as also found by the CEGAT. That being the position, the notice was beyond time and not by a competent officer authorised to issue the same. The argument, as advanced, though seems to be attractive but on scrutiny, we find no merit in it. Section 124 reads thus:- 124. Issue of show cause notice before confiscation of goods, etc.- No order confiscating any goods or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25 together makes it clear that liability to pay duty arises under Subsection (2) in addition to the fine under Sub-section(1). Therefore, where an order is passed for payment of customs duty along with an order of imposition of fine in lieu of confiscation of goods, it shall only be referable to Sub-section (2) of Section 125 of the Customs Act. It would not attract Section 28(1) of the Customs Act which covers the cases of duty not levied, short levied or erroneously refunded etc.. The order for payment of duty under Section 125 (2) would be an integral part of proceedings relating to confiscation and consequential orders thereon, on the ground as in this case that the importer had violated the conditions of notification subject to which exemption of goods was granted, without attracting the provisions of Section 28(1) of the Customs Act. A reference may beneficially be made to a decision of this Court reported in Mohan Meakins Ltd. Versus Commissioner of Central Excise, Kochi (2000) 1 S.C.C. 462 wherein it has been observed in Para 6 "Therefore there is a mandatory requirement on the adjudicating officer before permitting the redemption of goods, firstly, to assess the market ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... severely was the subject matter of various decision of the Tribunal. One such reference can be made to Tribunals' order in the case of Sree Aravindh Steels Ltd. v. Commissioner of Central Excise, Trichy - 2007 (216) E.L.T. 332 (Tri.-Chennai). Further, reference can be made to Tribunal's decision in the case of Rimjhim Ispat Ltd. v. CCE, Kanpur - 2013 (293) E.L.T. 124 (Tri.-Del.) as also to the Hon'ble Gujarat High Court decision dated 13-4-2011 in the case of Commissioner v. Mahesh Harlalka vide which the Tribunal's order setting aside the impugned order of the lower authorities confirming the demand jointly and severely, therefore set aside and the matter was remanded, stands upheld by High Court." 4.7 Accept for making a bald and vague assertion that adjudicating authority had failed to give any findings on facts or case laws on the basis of which he had arrived at the conclusion in para 34(f) of the impugned order, that the respondents were bonafide transferee, revenue has failed to state the fact and case laws which were to be considered and have not been considered by the adjudication commissioner. Commissioner has in his order at para 26C recorded that there was some collu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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