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2016 (12) TMI 263 - AT - CustomsContinuation of appeal proceedings by legal heir of the deceased appellant - whether the appeal continued is valid? - Held that: - Section 129E makes it a condition mandatory for filing an appeal that duty, if any, demanded in the impugned order should, unless waived, be deposited; waiver is at the discretion of the appellate authority and is not a matter of right. The statute does not contemplate reversal of a confirmation of demand except through the appellate mechanism. The appeals do not abate and must be decided. The deceased appellant Shri Inderjit Nagpal, not having filed the bills of entry for the consignment on which differential duty was confirmed, could not have been fastened with the duty liability - Held that: - Nothing would prevent the tax authority from acting against any citizen in the country on the ground that the person was the owner either originally or in due course of imported goods. The limits of action are never left to the balance or rationale of the tax collector; it is the law that has to determine the line that must never be crossed. The jurisdiction arrogated in the impugned order, unwarranted certainly, is not contemplated by law. Fraud may excite moral outrage but to allow such outrage to justify widening the tax jurisdiction beyond the plain reading of the statute is an invitation to regress to the tax regimes of the darker periods of history. The importers are, admittedly, identifiable and have been put on notice. Fastening of tax liability on Shri Inderjit Nagpal is without authority of law. Confiscation of goods - Held that: - Invoking the authority under section 111 and 113 of the Customs Act 1962 and failing to act on behalf of the new owners under section 126 is a breach of agency and a breach of trust. In the alternative, confiscation effected on goods that are not traceable, and have never been traced after its clearance for home consumption, is nothing short of a travesty. Confiscation is attended by the requirement to offer the confiscated goods to the person from whom it was confiscated on payment of redemption fine. Attaching a fine to the act of confiscation without the wherewithal to complete the process is not only futile but detracts from the credibility of government. It would appear that the adjudicating Commissioner has not comprehended the semantically insignificant but substantively major distinction between confiscation and liability to confiscation. The two are distinct and separate; with a finding of liability to confiscate, the lack of goods is admitted, thus foreclosing the possession of goods, but the ingredient necessary for invoking section 112 and section 114 is breathed into existence. Therefore, the confiscation of the goods in the impugned order is not in accordance with the law. Imposition of penalty - Held that: - It appears from the impugned order that this was sought to be justified by a finding that he allowed Shri Inderjit Nagpal to import the goods by mis-declaration and, thereby, abetted in evasion of customs duty. The primary role assigned to Shri Inderjit Nagpal is erroneous in the circumstances referred to above. The case of Shri Sanjay Chauhan, therefore, requires further examination. Section 28 can be invoked only in relation to specific consignments and the corresponding bill of entry. Without enumeration of the bill of entry concerned, the recovery of duty is without authority of law. This is a glaring lack that would render the proceedings to be untenable. This needs to be remedied in the remand proceedings if the outcome is to have a legal sanction - appeal allowed by way of remand.
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