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TMI Blog2000 (10) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... f M/s. Somerset International Ltd. on 16-4-98 should not be confiscated under Section 111(m) of the Customs Act, 1962 and why penalty should not be imposed on them for contravention of the provisions of the Customs Act, 1962 under Section 112 of the Act. In reply to the notice, appellant herein raised a contention that he was not connected with the import of disputed CD ROMs and that he is not liable for any penalty. By order-in-original No. ACU/VS/27/99 dated 8-9-99, adjudicating authority imposed a penalty of Rs. 5 lakhs on the appellant under Section 112(a) of the Customs Act. The penalty so imposed is under challenge. 2.Learned counsel representing the appellant raised following contentions for our consideration :- (a) The al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere over valued and payments effected at highly inflated rate. Show cause notice went on to state that the goods imported by M/s. Somerset International, New Delhi were liable for confiscation under Section 111(m) of the Customs Act. As a result of such import, it was further stated therein that noticees were liable for penalty for contravention of the provisions of the Customs Act as provided by Section 112 of the Act. 4.Appellant submitted reply to the show cause notice through his counsel Shri Rohit P. Ranjan. In that reply, it was admitted that appellant was a Director of M/s. Somerset International Ltd. It was further stated therein that he ceased to be a Director with effect from November, 1996. This averment has not been substantia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the appellant was that action was initiated on the ground that appellant's action allowed foreign currency to go out of the country. If foreign currency happened to be sent out of the country, according to learned counsel representing the appellant, that may constitute an offence under the Foreign Exchange Regulation Act. For such a violation, authorities contemplated to take action are not those contemplated by the Customs Act. Officers of the Customs department should have referred the matter to the concerned officers to proceed under the relevant provisions of the other Act. This argument appears to be quite attractive but, we do not find any substance in this contention. The main thrust in the show cause notice was that goods were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actual value. Import of goods in such a situation leads to confiscation of it under Section 111(m) of the Act. The consequence of such import was flow of foreign exchange out of India. This fact was stated in the show cause notice. That statement by itself will not go to invalidate the notice issued to the appellant and others. Viewed in this light, we do not find any illegality or impropriety in the action initiated by the adjudicating authority. 7.In the show cause notice, noticees were called upon to state why penalty should not be imposed upon them for contravention of the provisions of the Customs Act under Section 112 of the Act. This was the second point on which noticees' explanation was sought for. The first point on which their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11(m) of the Act in getting goods by over-valuing it. It was in such a situation, noticees were called upon to explain why penalty under Section 112 should not be imposed. So, according to us, the above quoted decision of the Madras High Court is not of any assistance to the appellant herein. 8.Learned counsel then relied on the decision rendered by a single Member of this Tribunal in Jogendra Prasad Vadav v. Collector of Customs [1990 (50) E.L.T. 250 (Tribunal)] in support of his contention that the failure in mentioning the specific clause of Section 112 is fatal to the adjudication proceedings. In this decision, the learned single Member of this Tribunal, following the above quoted decision of the Madras High Court, opined "if a penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iguity in the allegations made in the show cause notice. The noticees were never disabled from putting forth their contention. All contentions that could have been raised by the appellant were raised in the reply to the show cause notice which was filed through an advocate. In the final order passed by the adjudicating authority, penalty was imposed on the appellant herein and other noticees under Section 112(a) of the Act. In these circumstances, we are clear in our mind that the absence of mention of clause (a) or clause (b) of Section 112 in the show cause notice cannot be taken as a ground for quashing the order of the adjudicating authority. 9.Software CD ROMs valued at Rs. 6,10,02,789/- (4,908 pieces) were imported into India by ove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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