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2017 (10) TMI 413 - AT - CustomsPenalties u/s 112 of CA - Violation of import conditions - it is alleged that the records were manipulated to evidence generation of some quantity of ‘nut coke’ which was claimed to have been utilised in the manufacturing process, albeit by mixing with ferrous burden whereas the non-utilisable coke was transferred to the sister establishment - scope and validity of SCN - Held that: - It is an essential pre-requisite for imposition of penalty that offending goods in relation to which the noticees are alleged to have committed some act of omission or commission be held liable to confiscation. Neither does the notice propose confiscation of goods under section 111 of Customs Act, 1962 nor does the impugned order render such a finding. In the absence of such finding on the goods that are alleged to have contravened the provisions of the Customs Act,1962 leading to confiscation under section 111 of Customs Act, 1962, there is no scope for invoking the penal provisions that arises therefrom. The impugned order is incomplete to that extent. It is found from the records that the appellant-assessee was in possession of a valid Quantity-based Advance License which has been noted in the bills of entry, that a utilisation certificate had been issued by the jurisdictional officer and that a discharge certificate has been issued by the competent authority. These point out to coverage of the imports by notification no.51/2000-Cus. There is no allegation of ‘nut coke’ having been sold in the market; it is moot whether the conversion of unutilisable imported coke into utilisable coke, albeit in another location, for use by appellant-assessee would be a contravention of this notification - yet another aspect that the adjudicating authority has not considered. Matter remanded to the adjudicating authority to determine the relevant issues - appeal allowed by way of remand.
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