9911796707
TMI Blog2024 (4) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... e part of this order is as follows: ORDER " 1. I reject classification of the impugned imported goods i.e., "Narrow Woven Fabric Webbing" under CTH 87082100 and re-classify them under CTH 58063200 of the Customs Tariff Act, 1975. 2. I confirm demand of customs duty of Rs. 1,15,30,457/- upon the importer under Section 28(4) of the Customs Act, 1962. I also order for recovery of interest on the above confirm demand of customs duty under Section 28AA of the said Act. 3. I drop the proposal for confiscation of the imported goods valued at Rs. 18,50,64,110/- under Section 111(m) of the Customs Act, 1962. 4. I impose a penalty of Rs. 11,53,050/- upon the importer under Section 112(a) (i) of the Customs Act, 1962. I refrain from imposing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 114 A which applies if the duty is not paid or short paid by reason of collusion or any willful mis-statement or suppression of facts. These are the same elements which are required to invoke extended period of limitation under section 28(4). Therefore, learned authorized representative submits that when the demand of duty was confirmed under section 28 (4), there was no reason for the Commissioner to have not imposed the mandatory penalty equal to the amount of duty under section 114A. 5. The second issue raised by the learned authorized representative is that the Commissioner had, in the impugned order, imposed penalty under section 112 (a)(i) which will be payable if the goods were liable for confiscation under section 111. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that the Commissioner had found evidence of collusion or willful mis-statement or suppression of facts. While the respondent had conceded to pay duty and interest, it does not mean that there was collusion or willful mis-statement or suppression of facts. Therefore, there is no case to impose penalty under section 114A. 9. As far as the liability of goods for confiscation under section 111(m) is concerned, he submits that although it was not explicitly mentioned that the goods were liable for confiscation under section 111(m), it is evident from the impugned order that the Commissioner had found so and, accordingly, he imposed penalty under section 112. Insofar as the confiscation is concerned, it has been explicitly mentioned in the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent. In other words, the respondent agreed that there was short payment of duty and agreed to pay the same along with interest. 13. It needs to be pointed out at this stage that section 28 of the Customs Act is not the charging section. The charge of customs duty comes from section 12 according to which duties of customs shall be paid on the goods imported into or exported from India. However, if the duty which should have been paid was either not paid or was short paid, the remedy to recover such duties is available to the Revenue under section 28. This section also has an inbuilt limitation. Beyond the period of limitation although the charge would continue, Revenue will no longer have the remedy to recover the duties short paid. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds were not confiscated because they were not available for confiscation. However, he imposed penalty under section 112 which is imposable if the goods are liable for confiscation (even if they have not actually been confiscated due to their non-availability or of some reasons). The respondent did not contest the imposition of penalty and has already been paid the same. We do not find any ground to order confiscation of the goods which were not available. Holding that the goods were liable for confiscation under section 111(m) at this stage will be nothing more than a academic exercise as the penalty which would flow from such statement has already been imposed and has not been contested by the respondent. 15. Insofar as the penalty under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intent which cannot be treated at par with other instances of evasion of duty. The Committee, however, advise the Government of monitor the implementation of the provision with due diligence and care so as to ensure that it does not result in undue harassment." 17. A plain reading of the above only shows the background in which section 114AA was introduced. Nothing in the section indicates that it does not apply to import. It will apply to both imports and exports and the recommendation of the Committee was that it should be applied with due diligence and care so as to avoid any undue harassment to trade. The Commissioner did not impose any penalty under section 114AA because it can be imposed only if there is evidence that the person has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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