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2013 (9) TMI 387 - AT - CustomsNature of the goods – whether the imported items on chemically test were found to be Naphtha and were imported in contravention of policy provisions since during the relevant period Naphtha was a canalized item – Held that:- Benefit of doubt had given to the assessee - items restricted/ prohibited as far as imports during the Policy period 1990-92 - the importation and subsequent utilisation by the assessee were viewed as in contravention of policy provisions during the relevant period - the policy restrictions were imposed by the Commerce Ministry and Commerce Ministry generally acts on the basis of Ministry of Petro-chemicals as well as Ministry of Finance, deliberate violation of policy prohibitions cannot be laid at the doors of the assessee especially in view of the fact that there was no allegation of mis-declaration of description of the goods by the assessee at all. Confiscation of goods u/s 111(o) – Penalty u/s 112 – Held that:- Goods were not liable to confiscation - penalty cannot be imposed - the show cause notice did not propose confiscation u/s111(o) nor did the Commissioner in the order hold that the goods were liable to confiscation - observation of the Commissioner that the goods were liable to confiscation are wrong and penalty u/s112 can be imposed only when a person rendered the goods liable to confiscation – Following the judgement of Akbar Badruddin Jiwani vs. CC. [1990 (2) TMI 50 - SUPREME COURT OF INDIA] - the burden lies on the department to show that the assesse had acted dishonestly or contumaciously or with a deliberate or distinct object of breaching the law. Assesse’s imports cannot be considered to be against the policy at the time of import nor can be considered to have been prohibited - The relevant provisions which renders the goods imported by the appellant liable to be confiscation is Section 111(o) and according to which any goods exempted subject to any condition from duty or any prohibition in respect of the import thereof in respect of which condition was not observed unless the non-observance of the condition was sanctioned by the proper officer were liable to confiscation – decided in favor of assesse.
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