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TMI Blog2024 (12) TMI 1037X X X X Extracts X X X X X X X X Extracts X X X X ..... LD THAT:- Hon ble Supreme Court in the case of Weston Components Ltd. Vs CC, New Delhi [ 2000 (1) TMI 45 - SC ORDER ] has held that ' Under these circumstances if subsequently it is found that the import was not valid or that there was any other irregularity which would entitle the customs authorities to confiscate the said goods, then the mere fact that the goods were released on the bond being executed, would not take away the power of the customs authorities to levy redemption fine.' - the confiscation of the imported goods for non-fulfilment of the export obligation upheld under the provisions of Section 111(o) and imposition of fine under Section 125 of the Customs Act, 1962. Imposition of penalties - HELD THAT:- It is found that the Adjudicating Authority has already complied with the earlier order of this Tribunal to show lenience by reducing the penalties imposed to Rs.5,00,000/- on the Appellant (A1) and Rs.2,00,000/- each on the Appellants (A2 and A3) which cannot be termed to be excessive. As such, the impugned Order-in-Original No. 27243/2014 dated 30.06.2014 of the Commissioner of Customs, Chennai do not call for any interference and so, required to be upheld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal, Chennai which vide Final Order No. 454-456/2012 dated 03.05.2012 remanded the matter to the Original Authority for fresh consideration. Accordingly, the Adjudicating Authority had vide the de-novo proceedings confirmed the demand of duty, appropriated the amount payable by enforcing the bank guarantee, confiscated the machinery allowing its redemption on payment of fine of Rs.10,00,000/- and also reduced the penalties imposed under Section 112(a) of ACT ibid as mentioned above. 3. The Ld. Counsel for the Appellant Shri N. Viswanathan has submitted: - i. That the duty on the import of the subject goods assessed by the proper officer of customs in terms of Sec. 17 of the Customs Act was only Rs.7,57,80,682/- which was treated as the duty foregone and hence it was impermissible for the authorities to carry out any re-assessment of the duty at a distant date without review of the original assessment whereas the lower authority went on to confirm the higher duty assuming that the appellants did not dispute the computation of the said revision of duty which was highly improper and totally impermissible in law. ii. That the respondent ought to have followed the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing an order of adjudication under the Act. vi. It was submitted that the imposition of personal penalties on the officials of the Appellant company based on the finding recorded in para 22 of the impugned order blaming them for the non-fulfilment of the export obligation even when Sec. 112 [a] mandates the penalty only for improper import or abetting of such import and not in relation to any non-fulfilment of export obligation more particularly when the 1st Appellant was only the importer and there was no scope for alleging them to have abetted any of the acts of commission or omission of the 1st Appellant and which in any case was not alleged and therefore the penalty imposed on them was unsustainable. 4.1 The Ld. Authorised Representative Shri P. Narasimha Rao, Commissioner has reiterated the findings in the impugned order and submitted that the bank guarantee / bond executed by the Appellant were as per the conditions of Notification No. 111/95-Cus. dated 05.06.1995 and hence, any mistake as to quantification pointed out by the Appellant being in the nature of arithmetical error could be corrected at any time in terms of Section 154 of Customs Act, 1962 relying on the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms (Export Promotion), Mumbai [2011 (10) TMI 40-CESTAT, Mumbai] and M/s. Shrimandhar Fabrics Pvt. Ltd. Vs. Commissioner of Customs, Ahmedabad [2008 (8) TMI-CESTAT-Ahmedabad]. 4.5 It was submitted that in view of the active role played by the Chairman and Managing Director being key managerial persons in charge of the affairs of the Appellant company and allegation of fraudulent activities against them, the objections raised by statutory authorities like financial institutions and banks, imposition of penalty in terms of Section112(a) of ACT was fully justified. 5. Heard both sides and carefully considered the submissions and evidences on record. 6. The main issues that arise for consideration in these appeals are: - i. Whether the duty quantified and confirmed in the impugned order is correct and sustainable? and, ii. Whether the redemption fine and penalties imposed on the Appellants are justified in the facts of these appeals? 7. We find that this Tribunal had on the same issues vide [Final Order No. 454-456/2012 dated 03.05.2012] has remanded for decision to the Original Authority which reads as follows: - 4. After hearing both sides and on perusal of case records including the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5304368. I 353624.5 4201059.5 9859052 iv. Plasma Etch System 8340202 1668040.4 166804.0 1322756.0 3157600 v. Anti-Reflective Coating Station 27244658 5448931.6 544893.2 4321002.8 10314828 15972/ 29.3.97 I.C. Water and Cell cutting station 23501785 4700357.0 470035.7 3727383. 8897776 15974/29.3.97 i. Diffusion oven 36151851 7230370.2 723037.0 5733683.6 13687091 ii. SoIar cell Printing Metallisation station 59103642 1820728.4 1182072.8 9373837.6 22376639 iii. Di water station 8676445 1735289.0 173528.9 1376084.2 3284902 Total 200160280 41800178.7 4003205.6 33142237.3 18945622 The Importer-Appellant was put on the Notice for demand of duty of Rs.7,89,45,622/-. A perusal of the records indicate that the Ld. Advocate has not disputed the quantification of duty payable on the goods and is only questioning the legality of the demand of duty in excess of the amount mentioned in the Bond executed by the importer at the time of clearance of the goods under EPCG Scheme. Thus, the Appellant has disputed this duty computation on the basis of the Bond executed at the time of import for Rs.7,57,80,682/-. His contention that the demand of duty for non-fulfilment of Export Obligation to be limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of these provisions found in the Act clearly shows that the jurisdiction of a proper Officer to initiate proceedings for recovery of duty which has escaped collection, is not traceable to Section 28. The power to recover duty which has escaped collection is a concomitant power arising out of the levy of customs duty under Section 12 of the Act. This decision of the Apex Court clearly traces the power to recover duty which has escaped collection to Section 12 of the Customs Act, 1962. 11 . Section 28 has two main ingredients : (i) issue of show cause notice, (ii) within the stipulated time period for recovery of duty, short levied, not levied and erroneously refunded. The first ingredient is merely a restatement of one of the Principles of natural justice. Even in the absence of such an explicit provision, a duty demand has to be proceeded by a notice. In the present case, such notices have been issued prior to issue of the impugned order. 12 . As regards the time limits under Section 28, both sides have agreed that since the duty demand does not relate to short levy or non levy at the time of initial assessment on importation, but has arisen subsequently on account of failure to fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, nor any mandate to provide such a recovery provision in an exemption notification is contained in the said Section 25. 15 . We find that in Mediwell (supra), the Apex Court has interpreted the said Notification No. 64/88 in the context of allowing import of medical equipment without payment of duty and has observed in Paragraph 12 thereof as follows :- While, therefore, we accept the contentions of Mr. Jaitley, learned senior Counsel appearing for the appellant that the appellant was entitled to get the certificate from Respondent No. 2 which would enable the appellant to import the equipment without payment of customs duty but at the same time we would like to observe that the very notification granting exemption must be construed to cast continuing obligation on the part of all those who have obtained the certificate from the appropriate authority and on the basis of that to have imported equipments without payment of customs duty to give free treatment at least to 40% of the outdoor patients as well as would give free treatment to all the indoor patients belonging to the families with an income of less than Rs. 500/- p.m. The competent authority, therefore, should continue to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not be imposed because the goods were no longer in the custody of the respondent-authority. It is an admitted fact that the goods were released to the appellant on an application made by it and on the appellant executing a bond. Under these circumstances if subsequently it is found that the import was not valid or that there was any other irregularity which would entitle the customs authorities to confiscate the said goods, then the mere fact that the goods were released on the bond being executed, would not take away the power of the customs authorities to levy redemption fine. As pointed out by Ld. AR, the above case was relied upon by this Tribunal in the case of Farida Prime Tannery Vs. Commissioner of Customs [2006 (198) ELT 158]. Further, we also find that in the case of Visteon Automotive Systems India Ltd. Vs. CESTAT, Chennai [2018 (9) GSTL 142], the Hon ble High Court of Madras has held as follows: - 23. The penalty directed against the importer under Section 112 and the fine payable under Section 125 operate in two different fields. The fine under Section 125 is in lieu of confiscation of the goods. The payment of fine followed up by payment of duty and other charges ..... X X X X Extracts X X X X X X X X Extracts X X X X
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