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TMI Blog2021 (12) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... ds and misdeclared goods , the demand of duty consequent to the confiscation made under Section 28 (4), is valid and proper. In the present case, the appellant has been allowed to redeem the goods on payment of payment of duty. The appellant has later at the time of hearing of the appeal opted to abandon the goods. This does not in any way absolve the allegations of misdeclarations confirmed and upheld by the impugned order. The appellant imported prohibited goods which were absolutely confiscated. The goods which were allowed to be redeemed were also found to be undeclared / misdeclared for which penalty is imposable under Section 114A of the Customs Act. There are no grounds to interfere with the penalty imposed under Section 114A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sustain. It is her contention that in a live consignment (when the goods are not cleared), the duty cannot be demanded under Section 28 (4) and the Bill of Entry can be reassessed only under Section 17 (4). It is argued by her that when duty demand under Section 28 (4) does not survive, penalty imposed under Section 114A has to be set aside. 3. She relied upon the decision of the Hon ble Supreme Court in the case of Union of India Vs Jain Shudh Vanaspati Ltd. - 1996 (86) ELT 460 (SC) to argue that show cause notice under provisions of Section 28 can be issued only subsequent to the clearance of the goods under Section 47 of the Customs Act, 1962. She prayed to set aside the penalty imposed. 4. Ld. Authorized Representative Shri R. Raj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The goods mentioned in Sl.No.1 2 of Table-3 which do not conform to the standards laid down by the BIS and were found concealed with other goods imported, were treated as prohibited goods. Goods mentioned in Sl.No.3 to 10 of Table-3 were imported in violation of IPR Rules and were thus prohibited goods. All these goods were absolutely confiscated. The other goods mentioned in Table-2 were misdeclared / undeclared / undervalued goods and used to conceal the prohibited goods. The value of these goods was redetermined as ₹ 57,45,346/-. The said goods were allowed to be redeemed on payment of a Redemption fine of ₹ 5,80,000/-. The penalty equal to the duty (₹ 11,97,371/-) was imposed under Section 114A of the Act. 5. Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contest with regard to valuation and confiscation of the goods. 8. The original authority has absolutely confiscated the items falling in Table-3 of the show cause notice. The goods mentioned in Table 2 are allowed to be redeemed on payment of Redemption Fine of ₹ 5,80,000/- and applicable duty of ₹ 11,97,371/-. Equal penalty has been imposed under Section 114A of the Act ibid. 9. It is now submitted by the learned counsel that the appellant does not wish to redeem the goods. The Ld. Counsel has been at pains to argue that demand of duty under Section 28 cannot be invoked unless goods are cleared for home consumption; that demand, if any, has to be raised under sub-section (5) of Section 17 as the goods are not cleared b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - (a) the proper officer shall, within two years from the relevant date, serve notice on the person chargeable with the duty or interest which has not been so levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice; Provided that before issuing notice, the proper officer shall hold pre-notice consultation with the person chargeable with duty or interest in such manner as may be prescribed; (b) the person chargeable with the duty or interest, may pay before service of notice under clause (a) on the basis of,- (i) his own ascertainment of such duty; or (ii) the duty ascertained by the prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared goods and misdeclared goods , the demand of duty consequent to the confiscation made under Section 28 (4), is valid and proper. The reliance placed by the Ld. Counsel in the case of Union of India Vs Jain Shudh Vanaspati Ltd. (supra) is also incorrect. The Hon ble Supreme Court in the said judgement had held that High Court erred in coming to the conclusion that no show cause notice under Section 28 could have been issued until and unless the order under Section 47 had been first revised. The judgement of the Hon ble High Court was set aside and the Hon ble Apex Court directed that proceedings pursuant to the show cause notices under Sections 28 and 124 shall continue. The relevant paras of the Hon ble Apex Court judgement are reprod ..... X X X X Extracts X X X X X X X X Extracts X X X X
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