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TMI Blog2020 (11) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner and grant them immunity from penalty. The discretion of levying penalty is always available with the Statutory Authority under Section 114, whenever such an Authority is of the view that an attempt to export the goods are in such a nature that the goods would be liable to be confiscated under Section 113 - Since the Original Authority was of the opinion that the petitioner attempted to export the goods through misclassification, this Court is of the view that the Authority was justified in levying the penalty. The confiscation order, with an option to redeem on payment of redemption fine, was set aside by the Appellate Authority only on the ground that the goods, since already exported, were not available for confiscation and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned personnel of the CHA, export clearance was granted. (ii) Through an Order-in-Original dated 22.03.2012, passed by the Additional Commissioner of Customs, Tuticorin, the impugned goods were confiscated under Section 113 of the Customs Act, 1962 on the ground of miscalculation on the entry number on the Drawback Schedule, with an option to redeem the same on payment of a redemption fine of ₹ 75,000/- under Section 125 of the Customs Act. A penalty of ₹ 80,000/- was also imposed under Section 114(iii) of the Customs Act (hereinafter referred to as the 'Act'). (iii) On appeal, the Commissioner of Customs and Central Excise (Appeals), placed reliance on a judgment of the Hon'ble Supreme Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtence, which was subsequently rectified when it was brought to their notice and therefore, the penalty should not have been levied. 5. I am unable to accept such a contention. Section 114 of the Customs Act provides for imposition of penalty on any person who attempts to export goods improperly, which would be liable for confiscation under Section 113 of the Act. When the petitioner himself admits that they had quoted wrong DBK code at the time of export, the consequence of which would entitle them to claim 7.2% of drawback, such an act can be termed to be an attempt to export goods, which would be liable for confiscation. 6. Pursuant to the rectification, the goods came to be exported and the petitioner also admitted that he had wro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst this, it was the petitioner, who had preferred the Revision under Section 129(DD) of the Act, which came to be dismissed on 13.04.2013. The power to revise is a statutory power of the Central Government, to revise any order passed under Section 128A, where the order is of the nature referred to, in the proviso to Section 129A, which deals with payment of duty drawback. When the revision, filed at the instance of the petitioner, was rejected, there is no basis for the petitioner to claim that the orders of the Statutory Authorities ought to have been revived under Section 129D of the Act. 9. The decision in Decor India's case (supra) of the Tribunal as confirmed by the Hon'ble Supreme Court, does not deal with the situat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export the goods through misclassification, this Court is of the view that the Authority was justified in levying the penalty. 11. The confiscation order, with an option to redeem on payment of redemption fine, was set aside by the Appellate Authority only on the ground that the goods, since already exported, were not available for confiscation and therefore, the confiscation order is bad in law. It was not the finding of the Appellate Authority that the petitioner had not attempted to export the goods improperly. Hence, a mere setting aside of the confiscation order and the option of redemption, will not entitle the petitioner to escape his liability from penalty. 12. For all the foregoing reasons, I do not find any merits in the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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