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TMI Blog2024 (9) TMI 940X X X X Extracts X X X X X X X X Extracts X X X X ..... gime under Section 3 (7) or 3 (12) of the Customs Tariff Act 1975, Government of India has not incorporated such provisions for recovery of the Interest, Fine and Penalty under Section 3 (7) or Section 3 (12) of Customs Tariff Act 1975. Revenue has also not been able to show us such charging provision for levy and collection of interest, Fine and Penalty for late payment of IGST leviable under Section 3 (7) or under Section 3 (12) of Customs Tariff Act 1975. Therefore, the orders for recovery of interest, fine and Penalty on late payment of the IGST during Re-assessment process of Bill of Entry for the period from 13-10-2017 to 09-01-2019 are without authority of law and the same are unsustainable. In case of BIRLA CEMENT WORKS JK. SYNTHETICS LTD. VERSUS COMMERCIAL TAXES OFFICER AND STATE OF RAJASTHAN [ 1994 (5) TMI 233 - SUPREME COURT] the Hon ble Apex Court has held that interest can be levied and charged on delayed payment of tax only if the statute that levies and charges the tax makes a substantive provision in this behalf. In the case reported in COLLECTOR OF C. EX., AHMEDABAD VERSUS ORIENT FABRICS PVT. LTD. [ 2003 (11) TMI 75 - SUPREME COURT] the Hon ble Supreme Court has al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery of the duty. Therefore, the orders for recovery of Interest, Redemption Fine and Penalty in these cases are not sustainable considering charging provisions of the Customs Act 1962 and relevant provisions under the Customs Tariff Act, 1975 and the decisions rendered thereon as mentioned above. The issue on imposing Interest, Redemption Fine and Penalty is no longer Res Integra. The impugned orders on confirmation of demands for interest and appropriation thereof, order of confiscation of goods, imposition of Redemption fine and penalty are not sustainable and the same are set aside - Appeal allowed. - HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR AND HON'BLE MEMBER (TECHNICAL), MR. RAJU APPEARANCE: For the Appellant : Shri P M Dave, Advocate with Shri P P Jadeja, Consultant. For the Respondent : Shri Tara Prakash, Deputy Commissioner (AR). RAMESH NAIR These 3 appeals are filed by Appellant M/s. Chiripal Poly Films Ltd, Ahmedabad against 3 orders-in-original dated 18-04-2024, passed by the Principal Commissioner of Customs, Ahmedabad. The issue involved in these Appeals is whether Appellants is liable to pay duty, Interest, Redemption Fine and penalty for violation of Pre- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and physical exports of goods only. 2.1 Paragraph 4.14 of Foreign Trade Policy of 2015-20 (FTP) and Handbook of Procedures 2015-20 (HBP) incorporated Pre-import condition by Notification No. 33/2015-20. Thereafter, the amending Notification No. 1/2019-Cus., dated 10-1-2019 provided that the above mentioned condition (xii) i.e. ‗pre-import condition shall be omitted. Pre-import condition inserted by Notifications dated 13-10-2017 was to be complied with before its withdrawal with effect from 10-1-2019. The dispute remains for the period from 13-10-2017 to 09-01-2019. 2.2 Appellant have also imported various materials which were in the nature of their raw materials under Advance Authorizations during the period from 13-10-2017 to 09-01-2019. The proper Custom officers in Customs Stations at Mundra, JNCH and Ahmedabad, where such imports were made had allowed exemption of IGST under the Notification on final assessment. Appellant had not paid any amount towards IGST on imports during 13-10-2017 to 09-01-2019. 2.3 DRI, Kolkata had raised objection about non-compliance of pre-import condition. Appellant filed SCA No. 18097/2018 before Hon ble Gujarat High Court, challenged validi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts took place (i.e. inquiry by DRI/custom, judgments on 04-02-2019 reported in 2019 (368) ELT 337 (Guj.) by the Hon ble Gujarat High Court and by the Hon ble Supreme Court on 28-04-2022.), Show Cause Notices were issued to appellant on 20-04-2021 [signed on 22-04-2022] for Mundra, on 17-08-2021 for JNCH and on 16.09.2022 for Ahmedabad in respect of duty free imports made alleging wrong availment of exemption for imports made under Advance Authorisation Scheme at Ports of Mundra, JNCH and Ahmedabad. Show Cause Notices, alleged that pre-import condition was violated for the goods imported, and therefore duties foregone on such imports were recoverable with interest, Fine and Penalty for breach of the pre-import condition, invoking extended period under Section 28 (4) of Customs Act, 1962 and section 28AB, 111 (o), 112, 114A and 125 of Customs Act 1962 for demanding duties along with interest and proposing to confiscate imported goods at Ports of Mundra, JNCH and Ahmedabad and to impose Fine penalties. 2.6 The Principal Commissioner took up the Show Cause Notices for adjudication. Appellant filed reply to 3 SCNs stating that the appellant has deposited the amounts towards IGST and int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by appellant under any of the bills of entry., because all goods imported tax free have been used by the appellant for production of the final/finished goods which were exported by appellant. Thus the prime condition of Advance Authorisation scheme is satisfied in respect of goods imported under Advance Authorization scheme in appellant s case. Consequently, the impugned order regarding interest, confiscation, imposition of redemption fine and penalty are liable to be set aside. They mainly submit that imposing additional financial liability by imposing undue interest, redemption fine and penalty are not sustainable in law, particularly when there is no statutory provision for imposing the same. They have mainly made following submissions to support their view points in respect of confirmation of duty, interest and imposing Redemption Fine and penalty :- 3.1 Submissions on demand/payment of Duty [IGST] :- i. The appellant s submission is that duty [IGST] has been paid as a bona fide citizen, as per directions of the Hon ble Supreme Court, in para 75 of the judgment dated 28-04-2023 and CBIC Circular No. 16/2023-Cus dated 07-06-2023, ii. In the present case, the entire situation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s levied under Section 3 of the Customs Tariff Act 1975 to a limited extent, by virtue of sub-section (12) of Section 3 of the Tariff Act. There is no charging provision for interest, penalty and fine under sub-section (7) of Section 3 or any other provision of the Customs Tariff Act 1975. d) It is a settled legal position that interest, penalty and fine are separate levies, and such levies cannot be imposed without any specific and clear charging provision in the statute. Provision like sub-section (12) of Section 3 of the Tariff Act 1975 cannot serve the purpose of a charging provision for such levies by relying upon provisions of the Customs Act 1962. A separate and specific charging section like sub-section (7) of Section 3 of the said Tariff Act is required for other levies like interest, penalty etc. Hence, charging provisions for interest, penalty and fine must exist in a taxing statute, and such provisions for interest, penalty and fine must be specific and clear; and mere adoption of few provisions of other Act like Customs Act would not mean that charging provisions of such Act for levies like interest, penalty and fine were also adopted. e) Like sub-section (8) of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Ltd. DEVI DASS GOPAL KRISHAN LTD vs UOI - 2002 (140) E.L.T. 56 (P H) Acer India (Pvt.) Ltd. vs CC (Audit) - Chennai CESTAT s FINAL ORDER No. 40534/2024 dated 08-05-2024 Khemka and Co. (Agencies) Pvt. Ltd. v. State of Maharashtra 1975 (2) SCC 22 Pioneer Silk Mills Pvt. Ltd. v. U.O.I. 1995 (80) ELT-507 (Del) [approved by Apex Court in Union of India v. Pioneer Silk Mills Pvt. Ltd. 2002 (145) ELT-A74 (SC)] CCE, Ahmedabad vs ORIENT FABRICS PVT. LTD-2003 (158) E.L.T. 545 (S.C.) Indo Swiss Embroidery Industries Ltd vs CCE, Vapi-2017 (356) E.L.T. 226 (Bom.) 3.3 Revenue Neutral Situation at the time of import in the year 2023 : 1) The most important factor for considering whether the Appellant had mala fide intention to evade duty in revenue neutrality; and this Hon ble Tribunal has considered this factor in a long chain of decisions in favour of the assessees. In the present case, the entire situation was admittedly revenue neutral, and the Hon ble Supreme Court has also therefore allowed the appellant to pay duty and claim its credit and/or refund as the case may be. The appellant has been actually allowed credit of the entire amount of duty paid on reassessment of bills of entry, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tute, then a bond referring to payment of tax with interest cannot create a new charge or a new levy like interest. b) Appellant s undertaking in bond to pay IGST with interest could have resulted in the interest liability if such interest was chargeable under any provision made by the statute. In this case, there is no provision in Customs Tariff Act 1975, like Section 28AA of Customs Act 1962 for interest on customs duty, and therefore Principal Commissioner had no jurisdiction to fasten interest liability on appellant on the basis that a bond was furnished by the appellant binding themselves to pay tax with interest in certain eventualities. Section 28AA of the Customs Act 1962 is a charging section for interest on delayed payment of customs duty levied u/s 12 of the Customs Act 1962. However, IGST on the goods imported into India is not a duty leviable under Section 12 of the Customs Act 1962. Therefore, Principal Commissioner had no jurisdiction to hold that interest liability automatically arose any duty was confirmed/determined under Section 28 of the Customs Act 1962. c) Appellant relied upon the cases of Sterlite Optical Technologies Ltd. V/s. CCE, Aurangabad 2011 (270) EL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of tax under Section 28 (4) of the Customs Act, 1962 in the facts of the present case. c) Appellant was legally allowed to avail ITC of IGST, if paid at the time of import of the goods in question, and even refund of such tax, was admissible under the scheme of GST laws; and it was a complete revenue neutral situation at the material time and now also. Thus, there was no intent to evade payment of IGST by the Appellant in this case. d) Customs Authorities have conducted inquiry and investigation in this case before issuing Show Cause Notices, but, no evidence is found by Revenue officers for even remotely suggesting that appellant knew about scope and coverage of pre-import condition. e) Appellant has deliberately not kept any facts or information hidden from the Revenue officers while importing and clearing goods under exemption; or exporting goods in fulfilment of export obligations under the said Advance Authorisation Scheme. f) It is also settled that Revenue cannot invoke larger period of time limitation for duty demands in cases involving serious interpretation and resolution of the issues by higher courts and in a Revenue Neutral situation. Appellant never had any intent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period from 13-10-2017 to 09-01-2019. The following questions need consideration. i) Whether customs duty (in nature of Integrated Tax) was recoverable from the appellant, in view of time-bar demands under extended period (though Input Tax Credit i.e. ITC) of the entire duty amount is allowed to the appellant ? ii) whether interest is chargeable, whether goods are liable to confiscation entailing imposition of redemption fine, and whether penalty is imposable, in facts of this case ? iii) Whether in law the above liabilities of interest, confiscation/redemption fine and penalty imposed are without jurisdiction and untenable, because there is no provision under the law for imposing such liabilities which are in the nature of separate levies? iv) Whether the amount deposited towards interest is liable to be refunded, and whether liabilities of penalty and confiscation/redemption fine are liable to be set aside? 5.1 We find that adjudicating authority has passed impugned Orders in the cases and- (i) confirmed total Customs Duty Rs. 13,90,69,214/- under Section 28 (4) of Customs Act, 1962 in the form of IGST saved in imports of goods under Advance Authorizations and has ordered appropr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade payable instead of such Additional Duties of Customs. Government decided to impose IGST at the time of import, however, at the same time, importers were allowed to either take credit of such IGST for payments of Duty during supply to DTA, or to take refund of IGST amount paid within a specified period on certain situation for not being able to utilise credit. However, as trade facilitation on representations, Notification No. 18/2015-Cus dated 01-04-2015 was amended by the Notification 79/2017-Cus dated 13-10-2017 to extend exemption from the payment of IGST at the time of import of input materials, under Advance Authorizations, subject to the pre-import condition. 5.5 The Director General of Foreign Trade issued one Notification No. 33/2015-20 dated 13-10-2017, which amended Para 4.14 of Foreign Trade Policy (2015-20), to incorporate exemption from IGST, subject to compliance of the pre-import and physical export conditions. Thus, in post GST regime, amended Notification No. 18/2015-Cus., dated 01-04-2015, provided for levy of the following duties in addition to duty levy u/s of Customs Act 1962 :- (1) levy of a duty (referred to as additional duty) equal to the excise duty fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with documentary evidence. The claim for refund/credit, shall be examined on merits, on a case-by-case basis. The Hon ble Supreme Court directed that for the sake of convenience, the revenue shall direct the appropriate procedure to be followed, conveniently, through a circular, in this regard. Accordingly, CBIC issued Circular No. 16/2023-Cus dated 07-06-2023. Therefore, wherever, the Pre-Import Condition was not satisfied, the duty [IGST], foregone at the time of Import for the period from 13.10.2017 to 09.01.2019, became payable by Importers. Accordingly, Appellant[importer] has also obeyed the directions of the Hon ble Apex Court and CBIC Circular dated 07-06-2023. Appellant has paid such duty [IGST] and allowed Credit of such duty [IGST]. Therefore, Appellant has also not objected the duty [IGST] payment seriously. There is no requirement to pass any detailed order on such payment of duty [IGST], which is paid and its credit is allowed to Appellant. The Situation has become Revenue Neutral for Appellant, Hence, we also refrain from passing any order on such confirmation of duty, which is allowed as credit by Revenue, though duty may or may not be sustainable on other grounds i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the case may be, chargeable under this section as they apply in relation to the duties leviable under that Act.] SECTION 8B of Customs Tariff Act 1975 provides Power of Central Government to apply safeguard measures. SECTION 8B (9) ibid has provided as under :- (9) The provisions of the Customs Act, 1962 (52 of 1962) and the rules and regulations made thereunder, including those relating to the date for determination of rate of duty, assessment, non-levy, short-levy, refunds, interest, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act. SECTION 9A of Customs Tariff Act 1975 provides for imposing Anti-dumping duty . Section 9A (8) ibid has provide as under :- [(8) The provisions of the Customs Act, 1962 (52 of 1962) and the rules and regulations made thereunder, including those relating to the date for determination of rate of duty, assessment, non-levy, short levy, refunds, interest, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act.] 5.10 We find from a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome. Penalty is in addition to the amount of income-tax. This Court in Jain Brothers v. Union of India., 1970 (77) ITR 107 : 1969 (3) SCC 311, said that penalty is not a continuation of assessment proceedings and that penalty partakes of the character of additional tax. 26. The Federal Court in Chatturam v. C.I.T., Bihar, 1947 (15) ITR 302 , said that liability does not depend on assessment. There must be a charging section to create liability. There must be first a liability created by the Act. Second, the Act must provide for assessment. Third, the Act must provide for enforcement of the taxing provisions. The mere fact that there is machinery for assessment, collection and enforcement of tax and penalty in the State Act does not mean that the provision for penalty in the State Act is treated as penalty under the Central Act. The meaning of penalty under the Central Act cannot be enlarged by the provisions of machinery of the State Act incorporated for working out the Central Act. 5.12 In case of - Pioneer Silk Mills Pvt. Ltd vs UOI-1995 (80) E.L.T. 507 (Del.), Section 3 (3) of Additional Duties of Excise (Goods of Special Importance) Act, 1957 was for consideration before the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itional duties of excise under the Additional Duties Act. This statement made at the Bar was not challenged. Since, however, this point was not raised in the writ petition and the revenue had no opportunity to reply in its counter-affidavit, we leave the matter at that. Levy of penalty which is an additional tax has to be under the authority of law which should be clear, specific and explicit. 38. In Dr. Pratap Singh and Another v. Director of Enforcement, Foreign Exchange Regulation Act and Others, AIR 1985 Supreme Court 989, with reference to the expression so far as may be , the Supreme Court said that the expression had always been construed to mean that those provisions may be generally followed to the extent possible and it is not that those provisions have been incorporated by pen and ink (like in Section 3 (3) of the Additional Duties Act). This expression, therefore, negatives any plea that the whole of the provisions of the Central Excises Act have been incorporated by virtue of Section 3 (3) of the Additional Duties Act. We have already held that the term levy and collection has restricted meaning and inclusive provisions have been made only in relation to the refunds an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts, but then Article 265 of the Constitution mandates that no tax shall be levied and collected except by authority of law. There being no such authority of law to levy penalty, we have to hold so. The above decision in Pioneer Silk Mills Pvt. Ltd. vs. Union Of India 1995 (80) ELT 507 (Del.) was Maintained by the Hon ble Supreme Court in 2002 (145) ELT A74 (Supreme Court) and Approved in 2003 (158) ELT 545 (Supreme Court). 5.13 In the case reported in CCE, Ahmedabad vs ORIENT FABRICS PVT. LTD-2003 (158) E.L.T. 545 (S.C.), in para 20 of this judgment, the Hon ble Supreme Court has also referred to an amendment made in year 1994 by inserting the expression offences and penalties in Section 3 (3) of the Additional Duties Act and held that such amendment was required to remedy the defect contained in the unamended provisions. In absence of specific insertion of words like offences, penalties and interest, such levies could not be assumed and such additional tax cannot be charged. The Hon ble Apex Court has held as under :- 1 The short question that arises for our consideration in these appeals, which arises from the judgments and orders dated 10-2-1997 and 26-3-1996, as regards jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms Act. (Paras 10, 12, 13, 14 of the judgment are reproduced as under :- 10. Section 3 (1) of the Customs Tariff Act, 1975 provides for levy of an additional duty. The duty is, in other words, in addition to the customs duty leviable under Section 12 of the Customs Act read with Section 2 of the Customs Tariff Act. Secondly this duty is leviable at a rate equal to the excise duty for the time being leviable on a like article to the one which is imported if produced or manufactured in India. The explanation to this sub-section expands the meaning of the expression the excise duty for the time being leviable on a like article if produced or manufactured in India . The explanation to Section 3 has two limbs. The first limb clarifies that the duty chargeable under sub-section (1) would be the excise duty for the time being leviable on a like article if produced or manufactured in India. The condition precedent for levy of additional duty thus contemplated by the explanation is that the article is produced or manufactured in India. The second limb to the explanation deals with a situation where a like article is not so produced or manufactured The use of the word so implies that the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of tax under Section 3 of the Customs Tariff Act, 1975 arises on the import of the articles into India it does not necessarily mean that the Customs Tariff Act cannot provide for the charging of a duty which is independent of the customs duty leviable under the Customs Act. 5.15 The case of CCE, Surat-I V/s. Ukai Pradesh Sahkari Khand Udyog Mandli Ltd - 2011 (271) ELT 32 (Guj.) shows that the Hon ble Gujarat High Court while considering demand of Cess under Sugar Export Promotion Act, 1958 has held that interest can be levied and charged on delayed payment of Cess , if statute that levies and charges the tax makes a substantive provision in that behalf. Section 7 (4) Sugar Export Promotion Act, 1958 were similar to Section 3 (12) of the Customs Tariff Act, 1975; and provisions of Central Excise Act, 1944 and rules made were made applicable for levy of sugar Cess by Section 7 (4) of Sugar Export Promotion Act, whereas provisions of Customs Act, 1962 are made applicable by Section 3 (12) of Customs Tariff Act 1975. Revenue demanded interest on late payment of Sugar Cess under Section 11AA of Central Excise Act on ground that provisions of Central Excise Act and the Rules made, includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same and passed Orders, which are not sustainable and deserves to be set aside in this case. Adjudicating authority who passed Orders has not followed judicial discipline laid down by the Hon ble Supreme Court in 1991 (55) E.L.T. 433 (S.C.)-UOI vs KAMLAKSHI FINANCE CORPORATION LTD, wherein it is held that decisions of higher authorities should be followed by all authorities in department. In case of 2016 (340) ELT-193(Tri. LB) -J.K. Tyre Industries Ltd v/s CCE, on binding Precedent of the decision, it has been held that Precedent where Conflicting judgments of the various High Courts are available on the issue, Judgment of jurisdictional High Court shall prevail following the Judicial discipline, as held by Tribunal Larger Bench of five Member in 1997 (96) E.L.T.257 (Tribunal) resolving the issue of binding precedent in case of conflicting judgments of High Courts. It has been ordered to follow judgment of jurisdictional High Court in such cases. Accordingly, in the facts of this case, decisions of the Hon ble Gujarat High Court in case of CCE, Surat-I V/s. Ukai Pradesh Sahkari Khand Udyog Mandli Ltd reported in 2011 (271) ELT 32 (Guj.) needs to be followed. 5.17 The case of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay Court in relevant para has held as under :- 13. Therefore, the issue that requires to be decided by this Court in this petition is limited to leviability of interest and penalty in relation to amounts payable as duty other than basic customs duty. . 19. When a statute levies a tax it does so by inserting a charging section by which a liability is created or fixed and then proceeds to provide the machinery to make the liability effective. It, therefore, provides the machinery for the assessment of the liability already fixed by the charging section, and then provides the mode for the recovery and collection of tax, including penal provisions meant to deal with defaulters. Provision is also made for charging interest on delayed payments, etc. Ordinarily the charging section which fixes the liability is strictly construed but that rule of strict construction is not extended to the machinery provisions which are construed like any other statute. As held by the Apex Court in the matter of J.K. Synthetics Ltd. v. Commercial Tax Officer [1994] 1 SCC 276 relied upon by Mr. Sridharan, any provision made in a statute for charging or levying interest on delayed payment of tax must be const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not provide for any interest or penalty. Neither Section 90 of the Finance Act, 2000 provides for the same. Therefore, no interest and penalty can be levied on the portion of payment pertaining to surcharge, CVD and SAD. 30. As stated earlier, sub-section (6) of Section 3 and sub-section (8) of Section 3A of the Customs Tariff Act, 1975 referred to the procedural aspect and machinery provisions under the Customs Act, 1975 and not the charging provisions. So also Section 90 of the Finance Act, 2000. As held by the Apex Court in Jain Brothers v. Union of India AIR 1970 SC 778, which was also cited by Mr. Sridharan, penalty was not a continuation of assessment proceedings and penalty partook all the character of the additional tax. There is no provision under section 3 for additional duty or Section 3A for special additional duty under the Customs Tariff Act, 1975 or Section 90 of the Finance Act, 2000 that creates a charge in the nature of penalty or interest. 36. We find support for our view in Hyderabad Industries Ltd. v. Union of India 1999 (108) E.L.T. 321 (SC) relied upon by Mr. Sridharan. The Apex Court considered Section 12 of the Customs Act, 1962 and went on to hold tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be sustained in relation to CVD leviable under Section 3 (1) of Customs Tariff Act, 1975. The Hon ble Bombay High Court in the case of Mahindra Mahindra Ltd. v. Union of India (supra) had considered the said issue and held that interest and penalty in relation to CVD cannot be demanded in the absence of specific provisions for levy of interest, penalty in the Customs Tariff Act, 1975. The said decision was upheld by Hon ble Apex Court as reported in 2023 (8) TMI 135-SC. Following the same, we hold that the confiscation of goods, interest on CVD, redemption fine and penalties cannot sustain on this ground also. 5.19 In Final Order No. 40846/2023 dated 25.09.2023 passed by the Tribunal, Chennai in case of M/s. Acer India Pvt.Ltd the Chennai Bench of this Hon ble Tribunal also, the same legal issues arose whether demand of interest on additional duty of customs (CVD) and SAD was sustainable by applying provisions of Customs Act, 1962? The Tribunal has held in paras 21, 24, 25, 26 and 28 that penalty, interest etc. cannot be levied in regard to collection of CVD and SAD. The Tribunal has also observed in para 26 of decision that the entire situation was revenue neutral; and therefore t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w. 5.21 This is a case of revenue neutrality and interpretation of provisions. There is no substantive provision for confiscation or imposing Redemption fine in Customs Tariff Act 1975. There is no evidence showing intention for evasion of duty. There is no justification for confiscation of goods or imposing redemption fine, where the goods in question were released on Final Assessment and not available for release. The Larger Bench decision by the Hon ble Tribunal in Shiv Kripa Ispat Pvt. Ltd-2009 (235) ELT 623 supports Appellant s contention. Thus, the orders for confiscation of goods and imposing redemption fine are not sustainable, in terms of the applicable provisions of law and the decisions relied upon by the Appellant. 5.22 This is a case also of interpretation of provisions. There is no statutory provision for imposing Penalty under section 3 (7) or 3 (12) of the Customs Tariff Act 1975. There is no evidence showing intention for evasion of duty. Imposition of penalty requires mala fide intention to evade duty, which is not found in these cases. The ingredients required for imposing penalty are not found in these cases. Thus, the orders for imposing Penalty are not sustain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is settled that in the absence of specific provision relating to levy of Interest, Redemption Fine and Penalty in respective legislation for levy duty, the same cannot be demanded or imposed or recovered by taking recourse to machinery provisions relating to recovery of the duty. Therefore, the orders for recovery of Interest, Redemption Fine and Penalty in these cases are not sustainable considering charging provisions of the Customs Act 1962 and relevant provisions under the Customs Tariff Act, 1975 and the decisions rendered thereon as mentioned above. The issue on imposing Interest, Redemption Fine and Penalty is no longer Res Integra. 5.25 We also note that adjudicating authority has relied upon a few decisions in the impugned orders, which are on different facts and applicable in such facts. The facts and issue in the present cases are not identical to those cases. Therefore, the ratio of the decision is not directly applicable in the present case. 6 Since we decide these Appeals on the multiple counts, on merits and limitation, the other issues raised by the appellant are not taken up or discussed and the same are left open. 7. In view of our above discussion and findings, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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