9911796707
TMI Blog2023 (5) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty under Section 114A, due to lack of mens rea. Such a course of action could have only been done by affording full opportunity to the appellant, including in relation to justification or otherwise of quantum of penalty, which as per records does not appear to be the case. Even under section 128 A(3) cited in the impugned order, Commissioner (Appeals) while deviating from show cause notice/Order-In-Original is required to do natural justice based inquiry before doing modification of this nature. Imposition of penalty u/s 112(a) therefore does not appear proper in the facts of this matter. Since the goods imported were in the nature of offending goods having been mis-described in the Bill of Entry, the action in rem is still required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013-DB - A/11040/2023 - Dated:- 28-4-2023 - MR. RAJU, MEMBER (TECHNICAL) AND MR. SOMESH ARORA MEMBER (JUDICIAL) Shri. R. S. Sharma, Advocate for the Appellant Shri. Shri. Himanshu P Shrimali, Superintendent (AR) for the Respondent ORDER The present proceeding emanates from Order-In-Original bearing No: MP SEZ/05/ADC/SS/Gr.-IV/2012-2013 dated 26.09.2012 passed by the Additional Commissioner, which on appeal was largely upheld by the Commissioner (Appeals) vide in order dated 24.05.2013. 2. On 18.7.2028 the appellant filed a refund claim for refund of Rs. 2,90,212/- which was rejected vide Order-in-Original No. KDL/75/FAK/AC/Ref/MPSEZ/08-09 dated 11.11.2008 by Assistant Commissioner (Refund), Mundra who held that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty of Rs 9,25,427/- under section 114A of the Customs Act, 1962. 6. The appellant filed appeal with Commissioner(Appeal) who vide (P- 22 Order-in-Appeal No. 382/2013/Cus/Commr(A)/KDL Dated Appeal 24.5.2013; held that there was no mens rea and that it was a case where the appellant had not exercised due diligence to ensure that misdeclaration is not effected; and reduced Redemption Fine from Rs. 17 Lakh to Rs. 12 Lakh and held that adjudicating authority has wrongly imposed penalty under Section 114A and modified the penalty imposed on the appellant from Rs 9,25,427/- under Section 114 A of Customs Act, 1962 to Rs. 4 Lakh under Section 112(a) of the Customs Act, 1962. 7. Aggrieved by the aforesaid order, the appellant has filed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Section 112 simply to impose lesser penalty on the appellants under Section 112(a),wherein there is no requirement of mens rea and also considering that the goods which actually got imported were of quite high value which was accepted. The redemption fine was quite reasonable and therefore sustainable. 9. We have gone through the case law,(cited) as well as rival submissions. We find that the show cause notice was waived and enhancement of value was accepted by the appellant only, while seeking clearance of the goods. We, find merit in the submission made by the appellant, on the point of action in personam , that the Commissioner should not have imposed penalty under Section 112(a),while giving finding of the non- imposition of penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be done arbitrarily or as a precedent following the ratio of percentage of other case. At this belated stage, we find that the statutory course of ascertaining the market price and reducing it by duty chargeable may not be feasible. However, the transaction value taken by the department and accepted by the appellants seeking release of goods was taken of Rs. 47 Lakhs approximately and as against this, the declared value was of Rs. 22 Lakhs and appellant had paid the total duty of approx. Rs. 12 Lakhs. The Commissioner (Appeals) has accepted that there has been a mistake and not deliberate misdeclaration. Accordingly, the intent to do import to earn profit out of it has to be construed as absent. A later date compromise with the foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X
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