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2016 (5) TMI 1063 - CESTAT KOLKATAPenalty under Sec 114 of the Customs Act 1962 - Held that:- As observed from case records that Sec 112 (a) of the Customs Act 1962 has been mentioned for imposing penalty in the SCN but Adjudicating authority has imposed penalty under Sec 114 without giving any justification/opportunity to the appellant as to why suddenly penalty under Sec 114 was imposed. A corrigendum was required to be issued to effect the change & principles of natural justice were required to be followed if adjudicating authority was of the opinion that Sec 112 (a) of the CA 1962 is not the correct Section applicable in the instant case. By not giving any such opportunity or following corrective procedure, Adjudicating authority has gone beyond the scope of show cause notice which is not permissible as per case laws relied upon by the appellant, which also include ratios laid down by Apex Court. Nowhere in the records it is coming out that appellant was required to supervise 100% stuffing & examination of the cartoons in the containers. Even if there was some negligence on the part of the appellant the same has been taken care of by departmental proceedings and no penalty could be imposed under the Customs Act 1962 as per the relied upon case laws. There is also no evidence on record that appellant was aware that second hand used clothes are being exported & that quantities actually being exported are much less than the quantities declared in the shipping bill. No statement has been brought on record indicating knowledge/connivance of the appellant regarding misdeclaration in the assessment documents. It is observed from the language of Sec 113 of the Customs Act 1962 and the case records that appellant was not required to make any entry/declaration in the shipping bill. Once he is not required to make any entry/declaration in the shipping bill then appellant cannot be visited with penalty under Sec 114 of the Customs Act 1962. - Decided in favour of assessee.
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