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TMI Blog2024 (7) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... from the perusal of the impugned order particularly with regard to imposition of penalties on the present appellants no discussion and finding was given. In the matter related to imposition penalty on the present appellants the Adjudicating authority must reconsider the matter carefully considering the submission made by the appellant and thereafter pass a speaking and reasoned order. The impugned order is set aside - appeal allowed by way of remand. - HON'BLE MEMBER ( JUDICIAL ) , MR. RAMESH NAIR And HON'BLE MEMBER ( TECHNICAL ) , MR. C L MAHAR Shri Hardik Modh , Advocate for the Appellant Shri Rajesh Nathan , Assistant Commissioner ( AR ) for the Respondent ORDER RAMESH NAIR These appeals have been filed against the impugned Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r winding up of the said Company and appointed Official Liquidator. As the Company has gone into liquidation, its appeal has been abetted in view of the order passed by this Hon'ble CESTAT. By way of the present appeals, the Appellants are challenging action of the Respondent to the extent of implosion of penalties upon the Appellants. 2. Shri Hardik Modh, Learned Counsel appearing on behalf of the appellant made following detail submission:- I. PENALTY UNDER SECTION 112(a) CANNOT BE IMPOSED FOR NON-PAYMENT OF DUTY DECLARED IN BILL OF ENTRY FILED PURSUANT TO PERMISSION GRANTED BY THE RESPONDENT: 1. The said Company imported 100 containers and 63 containers separately. Since the Company was unable to re-export the containers within the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate Forum. In the absence of challenging the order for granting the permission for filing the Bill of Entry, goods ought not to have been confiscated under Section 111(o) and therefore, consequently penalty under Section 112(a) ought not to have been imposed. 4. Goods under Section 111(o) can be confiscated on account of failure to comply with post import conditions as stipulated under the Notification. Relevant extracts of 111(o) of the said Act is as under: (o) any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the non-observance of the condition was sanctioned by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-export of the goods before expiry of 6 months and therefore, the said action is bad in law as the Notification itself allows the importer to re-export the goods within a period of 6 months. As the period of 6 months did not expire at the relevant time, action of the Respondent for seizure of the goods was premature. 7. It is submitted that in respect of 63 containers, the said Company filed Bill of Entry much before completion of 6 months of arrival of the container and even during the said period of about 2 months, the said containers were detained by the Department and therefore, the said containers were not re-exported. In this circumstances, it cannot be said that the said company violated the condition of the Notification. III. FAIL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany are liable for penalty. In the case of Calcutta Spring Ltd. Vs. Commissioner of Cus. (Port) 2016 (342) ELT 243 (Tri. Kolkata), it was held as under: 4.1 On the issue of confiscation and imposition of penalty it is observed that all the relevant details were declared by the appellant at the time of clearance of goods. A delay in exporting the goods will make a case of demand of duty interest and will not attract confiscation or imposition of penalty upon the appellant. According. Redemption fine imposed penalty imposed upon the appellant is set aside IV. PENALTY CANNOT BE IMPOSED FOR CONTRAVENTION OF CONDITIONS OF NOTIFICATION IN A CASE WHERE THERE WAS NO INTENTION TO EVADE CUSTOMS DUTY : 10. It is submitted that the Company could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein they clearly mentioned about role of each persons. Since the Appellants did not involve in day-to-day activities, they were not liable for penalty for the offence for which goods are liable for confiscation as held in the following decisions : i. O.T. Enasu Vs. Union of India, 2011 (272) ELT 51 (Ker); ii. Sanjay Gupta Vs. CCE, 2004 (172) ELT 58 (Tri. Bang.); iii. Anil Bhalla Vs. CCE, 2001 (138) ELT 883 (Tri. Kolkata); iv. A.K. Tantia Vs. CCE, 2003 (158) ELT 638 (Tri. Del.) 12. In view of the aforesaid, it is submitted that the appeal may kindly be allowed with consequential relief. 3. Shri Rajesh Nathan, Learned Assistant Commissioner (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order. 4. On carefu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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