Case Law Details
Vinesh Naresh Chheda Vs Commissioner of Customs (Import-I) (CESTAT Mumbai)
Section 114A of Customs Act, 1962 ibid deals with imposition of mandatory penalty in certain cases. As per the Customs Act it is the importer who is to file the bill of entry to the proper officer u/s. 46 ibid while importing the goods and the assessment has to be made on that bill of entry and on such assessment, the duty is levied. Thereafter on payment of duty so assessed goods are cleared u/s. 47 ibid. If there is any non-levy or short levy on the goods so cleared then the procedure as contemplated by section 28 ibid is initiated and the competent officer of the department issues notice to the person chargeable with duty or interest requiring him to show cause why he should not pay the amount specified therein. Whereas Section 114A contemplates penalty for short-levy or non-levy of duty on the person who is liable to pay the duty or interest as determined u/s.28 ibid. The language of the aforesaid section is plain and clear. According to it, the person who is liable to pay duty or interest as determined u/s. 28 shall also be liable to pay a penalty equal to duty or interest so determined. Now it is to be seen from whom customs duty or interest has been demanded and who has paid it. The answer is obvious i.e. ‘the importer’ i.e. M/s. Sun Impex and in fact that importer has paid the customs duty amounting to Rs.16,42,871/- vide TR-6 Challan dated 31.3.2012 even before the issuance of the show cause notice and initiation of adjudication proceedings. From the case records it is clear that no duty or interest has been demanded from the appellant herein nor any duty or interest has been determined against him. It is the settled legal position that it is the importer who is liable to pay the duty not even its director or proprietor as the case may be.
No written agreement between the importer and the appellant herein has been placed on record as there was no such agreement as admitted by the importer i.e. Mr. Ganesh Shankar Nirulkar, proprietor of M/s. Sun Impex. The appellant herein is not the importer but alleged to be the claimant of the goods. The importer & the IEC holder is M/s. Sun Impex. Penalty under Section 114A is liable to be imposed on the person liable to pay duty or interest as determined u/s. 28. In this case the differential customs duty has been paid by the importer i.e. M/s. Sun Impex through its proprietor Mr. Ganesh Shankar Nirulkar. Penalty u/s. 114A is attracted only for the person who is liable to pay duty or interest under section 28 and not on anyone else. Therefore the imposition of penalty on the appellant herein under Section 114A ibid is without authority of law. The appellant could have been held liable for penalty under some other provision of the Act but not under Section 114A as the language of the said section is very clear and unambiguous.
FULL TEXT OF THE CESTAT MUMBAI ORDER
This appeal has been filed assailing the order dated 29.1.2020 passed by the Commissioner of Customs (Appeals), Mumbai-Zone III.
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