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TMI Blog2022 (6) TMI 1229X X X X Extracts X X X X X X X X Extracts X X X X ..... cation under the Custom Tariff Act, 1975 cannot provide the escapement from the legal metrology Act 2009. Goods that are not subject to prescription or declaration maximum retail price legal metrology Act, 2009 do not come within the ambit of Section 4 (a) of Central Excise Act 1944. In view of the same, the levy of differential duty in the order by the lower authority was set aside. Hence there is no mis-declaration. The foundation aspect of the case proceeded by the department against the company as well as the petitioner is no more inexistence. The petitioner as managing director has been imposed penalty which is a consequent lapse on the part of the misdeclaration by the company. Further, the foundation aspect of the department is set aside. The petitioner, who was imposed consequential penalty, if proceeded, would be is eligible to the enure benefit of the order passed by the CESTAT - Petition allowed. - W.P.(MD)No.21458 of 2018 And WMP(MD) Nos.19343,19344 of 2018 and 17313 of 2021 - - - Dated:- 14-6-2022 - Honourable Mr.Justice M.Nirmal Kumar For the Petitioner : Mr. Hari Radhakrishnan For the Respondent : Mr. R.Aravindhan Senior Standing Counsel ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine of Rs.8,00,000/- under Section 125 of the Customs Act on the importer. In the order portion of the order dated 12.10.2012, in para (vii) the adjudicating authority had imposed a penalty of Rs.12,90,942/- on M/s. Innobiz Electronic Private Limited, Calicut under Section 114 A of the customs Act, 1962 and in para (viii) imposed penalty of Rs.5,00,000/- on Shri Bhavesh Shah Kishore Partner of M/s. Innobiz Electronics Private Ltd., Calicut under Section 112(a) and 114AA of the Customs Act,1962. 4.Against this order, M/s. Innobiz Electronics Private Ltd., filed an appeal in Appeal No.19/2013 and the appellate authority, Commissioner of customs, Central Excise, Tiruchirappalli by an order dated 21.02.2013, while dismissing the appeal observed as follows:- the appellants has undervalued all the three consignments by suppressing the actual value and willfully mis-declaring the description of goods as spares in order to evade payment of duty. For such act, the goods imported by the appellants are liable to be confiscated under Section 111(m) of Customs Act, 1962. For such act, the appellants are liable for penalty under Sec.112 (a) and Sec.114A and Sec.114 AA of Customs act, 1962 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been noted that The appeals of M/s.Innobiz Electronics Pvt Ltd and M/s.Shri Bhavesh Shah Kishore are taken up for disposal in this common order. The petitioner has not preferred any appeal before the Commissioner as well as before the CESTAT, but the CESTAT has erroneously recorded as though the petitioner has also preferred the appeal and also set aside the penalty on him, hence the order suffered error apparent. The CESTAT by an order dated 17.07.2018 has modified the order to certain extent and the last sentence in page no.2 of the final order was modified as under:- The appeal of M/s.Innobiz Electronics Pvt. Ltd. is taken up for disposal in this order. In sum and substance, reference to the petitioner has been deleted. 7.The petitioner further submitted that in view of that order, the petitioner is now imposed with a penalty of Rs.5 lakhs as per the orders of the adjudicating authority. In view of Section 128 of the Customs Act, the appeal to be filed within a period of 60 days with reason in another 30 days. In view of the above, the petitioner is denied the opportunity of filing appeal against the order of adjudicating authority. Further, he submitted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the petitioner. 9.The fact that the petitioner has not filed any appeal before the Commissioner (Appeals) or CESTAT is not disputed. Further, it is the petitioner, who had represented the company, has given reply to the show cause notice, participated in the adjudication proceedings as well as before the Commissioner (Appeals). Further, the petitioner having actively participated in the proceedings cannot make a plea that by mistake he had not filed an appeal, on the other hand it can be construed that the petitioner having voluntarily participated in the proceedings has given up the right of appeal and in view of the same the above writ petition is not maintainable. 10. The Department finding that the CESTAT has passed an order which is error on the face of it, has filed the petition to rectify the same. Accepting the contention of the department, the CESTAT has deleted the portion referring to the petitioner and now in view of the above, the penalty imposed on the petitioner stands against him. Further, with regard to the statutory limitation of 60 days and with reasons of 30 days, the statutory period for filing appeal is 90 days and there is no question of relaxing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. In the CESTAT order, setting aside of penalty imposed has been accepted by the department and the department had not filed any appeal and hence, the CESTAT order has become final. The order of the CESTAT is that the imported products of the petitioner were not permitted for sale to the consumer before mandatory testing. The classification under the Custom Tariff Act, 1975 cannot provide the escapement from the legal metrology Act 2009. Goods that are not subject to prescription or declaration maximum retail price legal metrology Act, 2009 do not come within the ambit of Section 4 (a) of Central Excise Act 1944. In view of the same, the levy of differential duty in the order by the lower authority was set aside. Hence there is no mis-declaration. 12. In view of the above, the foundation aspect of the case proceeded by the department against the company as well as the petitioner is no more inexistence. The petitioner as managing director has been imposed penalty which is a consequent lapse on the part of the misdeclaration by the company. Further, the foundation aspect of the department is set aside. The petitioner, who was imposed consequential penalty, if proceeded, would b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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