TMI Blog2013 (12) TMI 1456X X X X Extracts X X X X X X X X Extracts X X X X ..... 1(m) of the Customs Act. - present case does not cover under the provisions of Section 28 of the Customs Act - Decided against assessee. - C/998/2012-Mum - Final Order No. A/2327/2013-WZB/C-I(CSTB) - Dated:- 11-12-2013 - Shri Ashok Jindal, Member (J) and P.R. Chandrasekharan, Member (T) Third Member on Reference : Shri S.S. Kang, Vice-President Shri Sanjay Agarwal, Advocate, for the Appellant. Shri D. Nagvenkar, Additional Commissioner (AR) D.D. Joshi, Supdt. (AR), for the Respondent. ORDER [Order per : P.R. Chandrasekharan, Member (T)]. - The appellant M/s. S.S. Metals and Alloys filed Bill of Entry No. 970631, dated 24-11-2010 for clearance of Heavy Melting Scrap weighing 179.50 MTs and Alloy Steel Scrap weighing 20.198 MTs classifying the same under CTH 7204 10 00 and declaring a value of ₹ 50,77,100/-. On examination of the goods, heavy melting scrap was found as declared but alloy steel scrap was found to be in the form of powder of ash colour and magnetic in nature and, therefore, samples were drawn and sent for chemical test to the Customs laboratory. Vide test report No. 1211/2010/7-H, dated 28-12-2010, the testing authority confirmed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings abate and, therefore, the question of imposing redemption fine under Section 125(1) and payment of penalty imposed under Section 112(a) could not arise. He also relies on the decision of this Tribunal in the case of M/s. Sonam Clock Pvt. Ltd. and Others v. Commissioner of Central Excise, Rajkot vide Order Nos. A/1962-1974/WZB/AHD/2011, dated 21-11-2011 [2012 (278) E.L.T. 263 (Tri.)] in support of their above contention. 3. The learned AR appearing for the Revenue reiterated the findings of the lower authorities. 4. We have carefully considered the rival submissions. As the issue lies in a narrow compass, we are of the view that the appeal can be disposed of at this stage itself. Both the sides, that is, Revenue and the appellant also has no objection in disposing of the appeal finally by this Tribunal. Therefore, we allow the application for early hearing and take up the appeal itself after dispensing with the requirement of pre-deposit of the dues adjudged. 5. In the instant case we find that the goods were found to be misdeclared on examination and therefore, the goods were reassessed for duty liability by determination of value and reclassification of the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from such person. ) Reading of the above section makes it absolutely clear that the proviso to Section 28(1A) relied upon by the Advocate for the appellant applies only in a situation where the duty determination is done under Section 28(1). It does not apply to a situation where duty determination is done under Section 17 of the Customs Act. In view of the above, the argument adduced by the appellant regarding abatement of proceedings has no merits at all. 5.1 As regards the reliance placed by the appellant on the judgment of Ahmedabad Tribunal in the case of M/s. Sonam Clock Pvt. Ltd. and Others, we notice that the same pertains to an excise matter where the demand was made under Section 11A. In that context, the Tribunal held that Section 11A(1A) provides for closure of proceedings when duty was discharged along with 25% duty as penalty. Section 11A corresponds to Section 28 of the Customs Act, as noted above. In the present case the duty liability has been determined under Section 17 and not under Section 28. Therefore, the judgment relied upon by the learned Advocate has no relevance at all to the facts of the present case. 5.2 In the instant case there is no dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out 1-4-2011, the appellant was informed that their goods are liable for confiscation under Section 111(m) of the Customs Act, 1962. On this premise, the appellant paid a differential duty of ₹ 3,22,938/- along with interest and 25% of duty as penalty and sought immunity as per Section 28(1A) of the Customs Act, 1962, which was denied by the impugned order. 12. In this case, the adjudicating authority while adjudicating the matter has not considered the contention of the appellant regarding payment of differential duty along with interest and 25% of duty as penalty. The adjudication order only states that the goods are liable for confiscation, which can be redeemed on payment of fine of ₹ 6 lakhs; declared value of the imported goods is rejected and same has been re-determined as ₹ 22,38,135/- for the purpose of assessment of calculation of duty; and goods are to be classified under CTH 7202 99 90 instead of 7204 10 00 and penalty of ₹ 3 lakhs under Section 112(a) of the Customs Act, 1962. The said order was challenged before the Commissioner (Appeals). The Commissioner (Appeals) observed that the show cause notice under Section 28(1A) can also be an oral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, the entire penal and confiscatory civil proceedings related to the notice issued under sub-section 28(1A) comes to an end. By such payment, in stipulated time by the person and persons to whom notice is served under provisos to sub-section (1) of Section 28 of the Customs Act, is saved from the rigours of adjudication procedure for determination of duty, interest and imposition of any penalty and fine in lieu of confiscation under any statutory provisions in the said notice, but the criminal proceedings against them for the same matter stated in the said notice may be continued. The abovesaid Board Circular also clarifies the intention of the rigours of adjudication behind enacting optional scheme to settle the issue at an earlier stage to reduce the litigation also to speed up the collection expeditiously. It is observed that the legislative intent with an optional scheme will be defeated by not explicitly stating this option to the assessee in the notice issued under the provisions to sub-section (1A) of Section 28 of the Customs Act, 1962. The provisions of Section 11A of the Central Excise Act and Section 28 of the Customs Act, 1962 are pari materia and in the case of Sonam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not correspond in respect of value or any other particulars declared by the importer hence the impugned order is rightly passed. 22. I find that in the present case, the appellants are not disputing the fact that the goods were misdeclared by them in terms of description as well as in value. Section 111(m) of the Customs Act provides that the goods are liable for confiscation in case there is a misdeclaration by the importer. Once the goods are held to be liable for confiscation, the adjudicating authority is empowered to give option to the importer to redeem the goods under Section 125(1) of the Customs Act and the importer is also liable for penalty under Section 112(a) of the Act. The ratio of the decision in the case of Sonam Clock Pvt. Ltd. (supra) is not applicable on the facts of the present case, as the issue in the case of Sonam Clock Pvt. Ltd. was demand made under Section 11A of the Central Excise Act. There are no parallel provisions under the Central Excise Act as Section 111(m) of the Customs Act. 23. In view of the above, as the present case does not cover under the provisions of Section 28 of the Customs Act, therefore I agree with the view taken by the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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