Home Case Index All Cases Customs Customs + HC Customs - 2021 (4) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (4) TMI 1130 - HC - CustomsQuantum of penalty u/s 112(b) of the Customs Act - Smuggling - Gold Jewellery - Foreign Currency - Motor Vehicle - requirement of separate show cause notice before enhancement of penalty from ₹ 1 lakhs to ₹ 10 lakhs at the revisional stage - HELD THAT:- On completing inquiry, a show cause notice had been issued by the DRI being DRI/ AZU ND14/19 on 28.01.2014 proposing confiscation of gold and foreign currency of USD 10,000/- and motor vehicle and also for the imposition of penalty. This was adjudicated by the adjudicating authority in order in original by an elaborate discussion of entire materials. When the appeal was preferred against the order in original, the Commissioner of Customs (Appeals) under section 128A had reduced the penalty from ₹ 10 lakhs to ₹ 1 lakhs, against which the revision application under section 129DD of the Customs Act was preferred where the DRI approached for revision of the said order in appeal - Sub-section (5) of section 129DD precludes passing of order of enhancing any penalty or fine in lieu of confiscation or confiscation of goods of greater value, unless while passing order under section 128A, the appellate authority has enhanced any penalty or fine in lieu of confiscation or has confiscated goods of greater value. However, if the Appellate authority has not enhanced as provided under sub-section 5(a), issuance of notice to the person affected by the proposed order, is insisted within one year from the date of the order sought to be annulled or modified. The order sought to be modified was of the Appellate Authority being Commissioner of Customs (Appeals) dated 20.01.2016 as the application for revision was preferred by the respondent No.2 under section 129DD of the Act, before the Principal Commissioner & Ex Officio Additional Secretary to Government of India on 30.11.2018. The petitioner was served with the notices thrice on 04.09.2018, 01.10.2018 and on 30.10.2018/ 06.11.2018. Grievance sought is made by the petitioner of nonservice of show cause notice, although he had admitted of receipt of one notice of hearing on dated 23.10.2018 which is within the prescribed period under sub-section 5(b) of section 129DD of the Customs Act. There may not be any formal show cause notice, this notice of the revisional authority would be sufficient compliance under the law - Even otherwise, this revision being a continuance of original order, there could not have been a need for a separate issuance of the show cause notice in a literal sense at the time of the matter having travelled to the revisional authority. The challenge made by the petitioner and the issues raised of non-issuance of the show cause notice merit no assistance, inasmuch as, aggrieved by the order in appeal of the appellate authority that the department had chosen to question it before the revisional authority. It was in continuity that this litigation had eventually culminated into revival of the order of penalty of ₹ 10 lakhs. Role of the petitioner in the act of smuggling the gold and currency notes is quite apparent and established from plethora of materials, which have been duly and satisfactorily proved on the strength of the documentary as well as oral evidence as required by the law. The entire conspiracy hinges around his relationship with Jagdishbhai at Sharjah and from the admissible and conclusive evidence recorded by the respondent, the petitioner has been rightly and unfailingly been held liable for committing the act in total contravention of law and hence, imposing of the penalty is found justifiable - Petition dismissed - decided against petitioner.
|