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TMI Blog2005 (2) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant into and under sea throughout from Singapore to Western Europe. M/s. VSNL filed Bills of Entry and have discharged duty on the terrestrial length of the cables so used and also on the declared length of 23.10 km for undersea length of cable as imported and placed by the contractor. The declarations were made as per two invoices issued by M/s. STC (contractor of consortium). However, subsequent enquiries revealed that the actual length of the cable laid would be more than the declared length of 24.41 kms, which was declared as well as the investigation revealed that on a repairs and replacement length of cable used separately. M/s. VSNL has not paid any duty on the fresh imported cable used in such repairs/replacement under sea a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unit length of the cable used in the terrestrial mode and such payments were required to be effected on a regular instalment basis, as and when the cables were being laid. The plea that for the under sea links, the consortium was to bear the cost and that cost was not known to M/s. VSNL in advance does not impress us to absolve M/s. VSNL from the liability to penalty, but it cannot absolve them from payment of duty on actual length of cable freshly laid. Since M/s. VSNL was the importer for such cables for the Project and for which they filed Bills of Entry. It was therefore their responsibility to discharge duty on the length of the cable to be used after ascertaining the same, if any additional length have been used as was in this case, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner's order confirming the duty demand thereon cannot be disputed. They are to be upheld. We order accordingly. (c) We find that the imports in this case took place sometime in 1993 and the penalty imposed under Section 114A which was introduced somewhere in 1996 therefore cannot be upheld, since there cannot be a retrospective operation of penal clause. We would therefore set aside imposition of penalty under Section 114A of the Customs Act, 1962 as arrived at in this case. We are also aware of the Tribunal's decision in the case of Western Coal Fields Ltd. v. CCE, Nagpur - 2003 (161) E.L.T. 768 (Tri.-Mumbai) and ONGC v. CCE, Vadodara - 1995 (79) E.L.T. 117 (Tribunal) wherein a view was taken that being a Public Sector Undertaking wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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