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2023 (6) TMI 797 - AT - CustomsRecovery of short paid Customs Duty - though appellant 1 had filed detailed reply to the various allegations made in the show cause notice, the Principal Commissioner has mistakenly not considered the same - non-application of mind - violation of principles of natural justice - HELD THAT - The basic reason for the order is non-disputing of the fact as stated in the show cause notice. Appellant 1 has filed a detailed reply which has not been recorded by the Principal Commissioner. There cannot be any dispute that the appellant has contested the various issues raised in the show cause notice. Further the Principal Commissioner while passing the order has not taken into account these submissions. Admittedly he has only referred to the reply filed by the partner for passing the order treating it to be the reply filed by the company - As the order has been passed without taking into consideration the written submissions made by appellant 1, we find that the order has been passed without application of mind and needs to be sent back to the adjudicating authority for passing a speaking order taking into account all the submissions made. The appeals are allowed by way of remanding back to the adjudicating authority for reconsideration.
Issues Involved:
1. Short payment of duties by M/s. Marvel Silver. 2. Liability to pay interest under Section 28AA of the Customs Act, 1962. 3. Confiscation of goods under Section 111(m) & (o) of the Customs Act, 1962. 4. Imposition of penalties under Sections 114A, 114AA, 112(a), and 117 of the Customs Act, 1962. 5. Validity of the Country of Origin Certificate (COC) for availing duty exemption. 6. Compliance with Notification No. 46/2011-Customs for duty exemption. 7. Application of Section 28(4) of the Customs Act for recovery of duties. 8. Consideration of submissions made by the appellant. Issue-wise Detailed Analysis: 1. Short Payment of Duties by M/s. Marvel Silver: The Principal Commissioner determined that M/s. Marvel Silver short paid duties amounting to Rs. 2,44,13,048, which was recoverable under Section 28(8) of the Customs Act, 1962. The order noted that the appellant did not dispute the duty demand raised in the show cause notice. 2. Liability to Pay Interest under Section 28AA of the Customs Act, 1962: The order held that M/s. Marvel Silver was liable to pay interest on the short-paid duty amount under Section 28AA of the Customs Act, 1962. 3. Confiscation of Goods under Section 111(m) & (o) of the Customs Act, 1962: The goods valuing Rs. 16,26,51,177/- imported under specified 11 bills of entry were liable to confiscation under Section 111(m) & (o) of the Customs Act, 1962. However, since the goods were not seized and were unavailable for confiscation, no redemption fine was determined under Section 125(1) of the Customs Act, 1962. 4. Imposition of Penalties: - A penalty equal to the determined duty amount (Rs. 2,44,13,048) was imposed on M/s. Marvel Silver under Section 114A of the Customs Act, 1962. - An additional penalty of Rs. 1,00,00,000 was imposed on M/s. Marvel Silver under Section 114AA of the Customs Act, 1962. - A penalty of Rs. 24,41,304 was imposed on Shri Nilesh Pushpraj Jain under Section 112(a) of the Customs Act, 1962. - A penalty of Rs. 1,00,00,000 was imposed on Shri Nilesh Pushpraj Jain under Section 114AA of the Customs Act, 1962. - A penalty of Rs. 1,00,000 was imposed on M/s. B.V. Chinai & Co (India) Pvt. Ltd. under Section 117 of the Customs Act, 1962. 5. Validity of the Country of Origin Certificate (COC) for Availing Duty Exemption: The Principal Commissioner noted that M/s. Marvel Silver failed to provide valid COCs for the goods imported under the specified bills of entry. The discrepancy between the goods declared in the bills of entry and those mentioned in the COCs was highlighted, leading to the denial of duty exemption. 6. Compliance with Notification No. 46/2011-Customs for Duty Exemption: The notification required the importer to present a valid Country of Origin Certificate (COC) to avail the duty exemption. The appellant admitted the submission of an invalid COC and the inadmissibility of the duty exemption benefit. 7. Application of Section 28(4) of the Customs Act for Recovery of Duties: The Principal Commissioner applied Section 28(4) of the Customs Act, 1962, for the recovery of the short-paid duties. The appellant did not dispute the application of this provision. 8. Consideration of Submissions Made by the Appellant: The Tribunal noted that the Principal Commissioner did not consider the detailed reply filed by appellant 1 (M/s. Marvel Silver) and passed the order based on the submissions made by appellant 2 (Shri Nilesh Pushpraj Jain). The Tribunal found that the order was passed without application of mind and needed to be reconsidered. Conclusion: The Tribunal set aside the impugned order and allowed the appeals by remanding the matter back to the adjudicating authority for reconsideration of all the issues in light of the submissions made by appellant 1. The adjudicating authority is directed to pass a speaking order taking into account all the submissions made by the appellant.
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