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TMI Blog2022 (1) TMI 1334X X X X Extracts X X X X X X X X Extracts X X X X ..... n-levy or short levy on the goods so cleared then the procedure as contemplated by section 28 ibid is initiated and the competent officer of the department issues notice to the person chargeable with duty or interest requiring him to show cause why he should not pay the amount specified therein. Whereas Section 114A contemplates penalty for shortlevy or non-levy of duty on the person who is liable to pay the duty or interest as determined u/s.28 ibid. The language of the aforesaid section is plain and clear. From the case records it is clear that no duty or interest has been demanded from the appellant herein nor any duty or interest has been determined against him. It is the settled legal position that it is the importer who is liable to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how pieces, hair accessories, cutting plotter, glass door accessories, glass fittings, spectacle frames, watch accessories, garment accessories through CHA M/s. The India Mercantile Agency. The importer had declared total CIF value as Rs.7,38,636/- (USD 14042.57) for the declared goods and the customs duty amounting to Rs.2,00,997/- was assessed by them as payable. Declaration forum was signed by Shri Ganesh Shankar Nirulkar, Proprietor of M/s. Sun Impex. The department got the information that the importer had imported consignments containing watches and that they would be attempting clearance of the same by way of mis-declaration. Acting on the basis of information, the SIIB (Imports) carried out investigations and carried out 100% examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicating Authority vide Order-in-Original dated 31.7.2013 held that the importer had mis-declared the quality, quantity and value before the assessing officer and therefore a total differential duty of customs amounting to Rs.16,87,347/- is liable to be recovered under Section 28(4) ibid alongwith interest, if applicable. Penalty u/s. 114A ibid for Rs.16,87,347/- was imposed on the importer M/s. Sun Impex and also on the appellant herein separately by terming the appellant as the 'actual importer'. A penalty u/s. 114AA ibid for Rs.3 lakhs was imposed on M/s. Sun Impex and Ganesh Shankar Nirulkar respectively for use of manipulated invoices. No separate penalty has been imposed u/s. 114A ibid on Shri Ganesh Shankar Nirulkar the proprietor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmissions learned counsel placed reliance on the following decisions:- (i) Chowhan Exports Ltd. vs. CC, Sheva, Raigad; 2000(121) ELT 833 (Tri.) (ii) Nippon Audiotronix Ltd. vs. CC, New Delhi; 2000(120) elt 736 (Tri.) (iii) Paresh Parekh vs. CC, Chennai; 2008(221) ELT 441 (Tri.-Chennai) Per contra learned Authorised Representative very vehemently argued the matter and prays for dismissal of appeal. He submits that nowhere the term 'importer or beneficiary or owner´ has been used in section 114A ibid therefore there is no illegality in imposing penalty on the appellant u/s. 114A. He further submits that going by the panchanama, evidence on record and the statements recorded during investigation it is clear that the appellant is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s levied. Thereafter on payment of duty so assessed goods are cleared u/s. 47 ibid. If there is any non-levy or short levy on the goods so cleared then the procedure as contemplated by section 28 ibid is initiated and the competent officer of the department issues notice to the person chargeable with duty or interest requiring him to show cause why he should not pay the amount specified therein. Whereas Section 114A contemplates penalty for shortlevy or non-levy of duty on the person who is liable to pay the duty or interest as determined u/s.28 ibid. The language of the aforesaid section is plain and clear. According to it, the person who is liable to pay duty or interest as determined u/s. 28 shall also be liable to pay a penalty equal to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 28(2) can only be to the Company. The penalty contemplated by Section 114A can only be on the person liable to pay the duty and not to any other person. Viewed in this light, the order imposing penalty under section 114A on the Director is illegal." No written agreement between the importer and the appellant herein has been placed on record as there was no such agreement as admitted by the importer i.e. Mr. Ganesh Shankar Nirulkar, proprietor of M/s. Sun Impex. The appellant herein is not the importer but alleged to be the claimant of the goods. The importer & the IEC holder is M/s. Sun Impex. Penalty under Section 114A is liable to be imposed on the person liable to pay duty or interest as determined u/s. 28. In this case the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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