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2022 (9) TMI 1352 - AT - CustomsLevy of penalty on Customs Broker and Managing Director u/s 112 (a) - Deemed conclusion of proceedings on payment of duty with interest - benefits of sub-Section 6(i) of Section 28 of the Customs Act -proceedings against the Appellant-Customs Broker - conclusion of proceeding against goods which were seized under Section 110 of the Customs Act or liable for confiscation on the other Sections of Customs Act - HELD THAT:- While applying this provision against the Appellant, the Commissioner had observed that the goods were seized under Section 110 and liable for confiscation under Section 111(m) of the Customs Act, 1962 and hence the co-noticee M/s. Damani Shipping Pvt. Ltd. (present Appellant) is out of the purview of the clarification of the Board Circular No. 11/2016-Cus. dated 15.03.2016. Further, Section 28(6)(i) of the Customs Act, 1962 clearly reveals that the proceedings in respect of ‘such persons or other persons’ to whom the notice is served under sub-Section (1) or sub-Section (4) of the Section 28 of the Customs Act, shall, without prejudice to the provisions of Section 135, 135A and 140 be deemed to be conclusive as to the matters stated therein. The Board Circular No. 11/2016-Cus. in unambiguous terms clarified that other person implies that other person to which no demand of duty is raised with notice served under Section 1 or sub-Section 4 of Section 28, as the case me be. Hence the Appellant’s case squarely covered under provision. Since it was a co-notice to whom no demand notice was made but notice under Section 28 was served. Ambiguity arises because of the fact that at the end of para 6 it was noted that case involving seizure of goods under Section 110 of the Customs Act or cases where confiscation proceedings are involved, would be out of the purview of this Circular - the said Circular has not personified any violator individually since it had categorically stated that cases involving seizer and confiscation would be out of the purview of the Circular and therefore the order passed by the Commissioner in allowing the benefit contained in Section 28(6)(i) to the importer company and its Managing Director and denying the same to the Appellant who is charged under same penal provisions under Section 112, 114(A), 114(A)(A) in the same case is unsustainable in law and equity. Appeal allowed.
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