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TMI Blog2022 (9) TMI 1352X X X X Extracts X X X X X X X X Extracts X X X X ..... 1962 and hence the co-noticee M/s. Damani Shipping Pvt. Ltd. (present Appellant) is out of the purview of the clarification of the Board Circular No. 11/2016-Cus. dated 15.03.2016. Further, Section 28(6)(i) of the Customs Act, 1962 clearly reveals that the proceedings in respect of such persons or other persons to whom the notice is served under sub-Section (1) or sub-Section (4) of the Section 28 of the Customs Act, shall, without prejudice to the provisions of Section 135, 135A and 140 be deemed to be conclusive as to the matters stated therein. The Board Circular No. 11/2016-Cus. in unambiguous terms clarified that other person implies that other person to which no demand of duty is raised with notice served under Section 1 or sub-S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irmation of penalty of Rs.50,000/- against the Appellant under Section 112(A) of the Customs Act, 1962 by the Commissioner of Customs (Import), Mumbai vide above referred order is assailed in this appeal. 2. Factual back drop of the case, as could be inferred from the appeal memo and the order of the Commissioner, is that Appellant as CHA had cleared rotating tube bundle dryer and high speed mixture with their accessories imported by M/s. Chandigarh Distillers Bottles Ltd. by filing bill of entry No. 5491717 dated 15.05.2014 and classifying the items under Customs Tariff Heading No. 8436 that attracted nil rate of CVD. Special Intelligence and Investigation Branch investigated the matter and having regard to the classification of those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel for the Appellant Mr. Prashant Patenkar, with reference to judicial decision reported in 2016 (338) ELT 620 (Tri.-Del.) in the case of Orbit Jewellers Vs. Commissioner of Customs, Air Cargo whereby earlier Section 25 of the Customs Act and its application, which is coterminous to the present provision contained in Section 28(6)(i) has been discussed, and judicial decisions reported in 2018 (362) ELT 316 (Tri.-Del.) in the case of Rohit Sakhuja Vs. Commissioner of Customs (ICD TKD)(Import), New Delhi that deals directly with the provision contained in Section 28(6)(i) of the Customs Act, had argued that those two decisions alongwith many other decisions as referred in his compilation clearly indicate that the deemed conclusion of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resentative for the Respondent-Department Mr. D.S. Maan, in filing written submissions and relied upon the judgment of the Hon'ble High Court of Madras in the case of Sri Kamakshi Agency Vs. Commissioner of Customs, Madras reported in 2001 (129) ELT 29 (Mad.), argued with reference to the reasoning and rationality of the order passed by the Commissioner and drew attention of this Bench to confession of the Director of the Appellant Company recorded under Section 108 of the Customs Act regarding different classification noted by them in the earlier consignment of another importer that speaks well about intentional misclassification though he attributes it to inadvertent mistake, for which penalty was rightly imposed on the Appellant that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reveals that the proceedings in respect of such persons or other persons to whom the notice is served under sub-Section (1) or sub-Section (4) of the Section 28 of the Customs Act, shall, without prejudice to the provisions of Section 135, 135A and 140 be deemed to be conclusive as to the matters stated therein. But then he opined that since goods were liable for confiscation the proposed penal action cannot be concluded in terms Section 28(6)(i) of the Customs Act, 1962 against the Appellant. 7. Now, let us have a look at the relevant portion of the Board Circular No. 11/2016-Cus. it reads under para 5 6 as follows: 5. The provision of deemed conclusion is contingent upon the person to whom a show-cause notice has been issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions under sections 111, 113, 115, 118, 119, 120 and 121 are invoked, would be out of purview of this Circular. Without a threadbare analysis of the relevant portion of the clarificatory Circular as noted above it can be said that the Circular in unambiguous terms clarified that other person implies that other person to which no demand of duty is raised with notice served under Section 1 or sub-Section 4 of Section 28, as the case me be. Hence the Appellant s case squarely covered under provision. Since it was a co-notice to whom no demand notice was made but notice under Section 28 was served. Ambiguity arises because of the fact that at the end of para 6 it was noted that case involving seizure of goods under Section 110 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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