Case Law Details
Damani Shipping Pvt. Ltd. Vs Commissioner of Customs (Import-I) (CESTAT Mumbai)
Without a threadbare analysis of the relevant portion of the clarificatory Circular No. 11/2016-Cus. dated 15.03.2016 it can be said that the Circular in unambiguous terms clarified that other person implies that other person to which no demand of duty is raised with notice served under Section 1 or sub-Section 4 of Section 28, as the case me be. Hence the Appellant’s case squarely covered under provision. Since it was a co-notice to whom no demand notice was made but notice under Section 28 was served. Ambiguity arises because of the fact that at the end of para 6 it was noted that case involving seizure of goods under Section 110 of the Customs Act or cases where confiscation proceedings are involved, would be out of the purview of this Circular. Apart from the fact that the said Circular was held in Rohit Sakhuja case (supra) as clarificatory and cannot supersede and legislative intent of the Act, the addition of provision concerning seizure and confiscation could only held to be applicable in cases where Section 135(A) and 140 of the Customs Act were invoked and it has no bearing on simple duty demand and penalty upon adjudication of a proceeding on mis-declaration. Be that as it may, the Circular No. 11/2016-Cus. dated 15.03.2016 has not personified any violator individually since it had categorically stated that cases involving seizer and confiscation would be out of the purview of the Circular and therefore the order passed by the Commissioner in allowing the benefit contained in Section 28(6)(i) to the importer company and its Managing Director and denying the same to the Appellant CHA who is charged under same penal provisions under Section 112, 114(A), 114(A)(A) in the same case is unsustainable in law and equity. Hence the order.
FULL TEXT OF THE CESTAT MUMBAI ORDER
Refusal to extend benefits of sub-Section 6(i) of Section 28 of the Customs Act in concluding proceedings against the Appellant-Customs Broker after differential duty with required penalty was paid by the importer and confirmation of penalty of Rs.50,000/- against the Appellant under Section 112(A) of the Customs Act, 1962 by the Commissioner of Customs (Import), Mumbai vide above referred order is assailed in this appeal.
2. Factual back drop of the case, as could be inferred from the appeal memo and the order of the Commissioner, is that Appellant as CHA had cleared rotating tube bundle dryer and high speed mixture with their accessories imported by M/s. Chandigarh Distillers & Bottles Ltd. by filing bill of entry No. 5491717 dated 15.05.2014 and classifying the items under Customs Tariff Heading No. 8436 that attracted nil rate of CVD. Special Intelligence and Investigation Branch investigated the matter and having regard to the classification of those products made by other importers, opined that the imported goods were supposed to be classified under CTH 8419 with 12.5% CVD. Being informed importer discharged the duty liability with interest and also paid penalty @25% of the duty before issue of show-cause notice which is acknowledged in para 19 and 22(iv) of the show-cause notice. Appellant was also put to show-cause for violation of provision contained in the Customs Act making it liable for penalty under Section 112(a) of the said Act. Learned Commissioner of Customs had absolved the importer and its Managing Director by extending the benefits contained in sub-Section 6(i) of Section 28 of the Customs Act but confirmed penalty against the Appellant by holding that Circular No. 11/2016-Cus. dated 15.03.2016 excludes application of such provision of deemed “conclusion of proceeding” against goods which were seized under Section 110 of the Customs Act or liable for confiscation on the other Sections of Customs Act and since in the instant case both Section 110 & 111(m) were invoked, the same benefit can’t be extended to the Appellant. Thereafter, she confirms the penalty on the Appellant for having not performed its job stipulated under Customs Broker Licencing Regulation, 2012 in not collecting correct information concerning classification and valuation of goods before filing the bills of entry. The Appellant assailed the said order of confirmation of penalty before this forum.
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