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2016 (4) TMI 440 - CESTAT NEW DELHIDemand of Interest - Section 28 of the Customs Act, 1962 - Import of "IS 1000 fibre-optic endoscope surgical system" classifying under Customs Tariff Heading 9018.90 and claimed benefit of concessional rate of duty @ 5% - Adjudicating Authority held mis-declaration of goods and denied benefit of exemption Notification - Held that:- no interest under section 28AB ibid is recoverable because the demand has not raised/confirmed under Section 28 ibid, adding that even if the impugned order is taken to be issued in the context of finalisation of the provisional assessment under section 18 ibid no interest can be demanded as the provision for interest liability was introduced on 13.07.2006 wide insertion of section 18(3) while in the present case, the Bill of Entry was provisionally assessed on 28.10.2002 and that the interest cannot be demanded upon finalisation even if such finalisation was done after 13.07.2006. Imposition of penalty - Section 114A of the Customs Act, 1962 - Held that:- the Show Cause Notice did not raise the demand in terms of Section 28 ibid. The wording of Section 114A ibid makes it expressely clear that penalty under that Section is attracted when liability to pay duty or interest is determined under Section 28 ibid. Thus, penalty under section 114A ibid is simply not attracted. Imposition of penalty - Section 112 of the Customs Act, 1962 - Held that:- by following the judgment of Delhi High Court in the case of CC (I&G) Vs. Care Foundation [2014 (3) TMI 641 - DELHI HIGH COURT], the penalty imposed on appellant no. 2 should be reduced in the same ratio to ₹ 1 lakh. As regards penalty on Mr. Bhuvander Kaul, it is clearly brought out in the impugned order that he was the one looking after the import of the said equipment and that he was having knowledge of the mis-declaration and was a part of the entire plan to mis-declare the impugned goods. Thus, penalty on him is attracted. But in the given circumstances and having regard to the fact that penalty on M/s. J. Mitra & Bros, (who was also aware of the mis-declaration and was part of the plan to mis-declare the impugned goods) has been reduced by us from ₹ 5 lakhs to ₹ 1 lakh, the same principle has to be followed in the case of Mr. Bhuvander Kaul also. As regards the penalty on the CHA, (M/s Elecon Cargo Pvt. Ltd.), it filed a Bill of Entry on the basis of the documents made available to it by the importer and it had duly enclosed the supplier's invoice which described the goods as "Endoscopic Intuitive IS 1000 da Vinci Surgical System". There is nothing on record to show that the CHA was deliberately trying to mislead Customs or was having any mala fide. The very fact that the relevant invoice was duly enclosed along with the Bill of Entry submitted to Customs is indicative enough that it was not the intention of the CHA in any way to hoodwink Customs. Thus, penalty on the CHA is not attracted. - Matter disposed of
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