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TMI Blog2021 (12) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... judicating authority who appeared to have been influenced only by the discrepancy of the denierage and by the endorsement on the bill of entry produced by the appellant. The notings about availment of CENVAT credit as demonstrating transfer may well be a hypothesis that could have been tested from available records. It cannot be concluded whether the adjudication was carried out after affording the appellant of every opportunity of pleading their defence. It would be in the interest of justice for the adjudicating authority to take a fresh decision on the mater after giving an opportunity to the appellant to refute all allegations and also to consciously discharge the onus imposed on them under section 123 of Customs Act, 1962 - app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst them. It is, therefore, necessary for us to underline that the order impugned had not fastened duty liability on the appellant specifically under section 28 of Customs Act, 1962. Nonetheless, the option to redeem the goods carried the statutory caveat of duty having to be borne and, we must emphasize, that crystallizing of liability is also a statutory responsibility. The detriment of confiscation under section 111(d) of Customs Act, 1962 and imposition of penalty under section 112 of Customs Act, 1962 were consequences of the finding that 105 cartons of nylon filament yarn with markings of NFY-75D/48SD seized at the premises of M/s Rahul Roadways, Bhiwandi did not match the description in the bill of entry no. 129/04.12.2002 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pertaining to the appeal, proceed to render our findings. 5. The preliminary issue of jurisdiction arises from the alleged lack of competence on the part of the Superintendent of Central Excise to exercise powers under section 110 of Customs Act, 1962, as well as lack of competence of the Deputy Commissioner of Central Excise to issue show cause notice, and it is contended that the irreparable taint of illegality attends upon all subsequent proceedings. Section 110 of Customs Act, 1962 empowers seizure of goods that are believed to be liable to confiscation under section 111 of Customs Act, 1962 and most of the several breaches enumerated therein, including goods, imported, attempted to be imported or brought within the Indian customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 122 of Customs Act, 1962 delineating the various hierarchical distinctions. In the present case, the adjudication is that of Commissioner of Customs. Consequently, it cannot be said that there is jurisdictional impediment that bars, or has tainted, the proceedings leading to the impugned order. 7. A finding on merit will decide the acceptability of the claim of the appellant that the imported goods had been legally obtained and under the cover of the two bills of entry. It is common ground that the denierage of the yarn in the two bills of entry is not the same as that seen in the markings on the cartons. It is also on record that the test result has not evidenced the conformity of the denierage with the markings on the package ..... X X X X Extracts X X X X X X X X Extracts X X X X
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