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2017 (8) TMI 90 - AT - CustomsPenalty - whether when the SCN dt. 17.3.2003 had asked the appellant to show cause why penalty should not be imposed only under Section 114A of the Act, whether the adjudicating authority can impose penalty under Section 112 instead? - Held that: - the scope and extent of the two Sections 112 and 114A are different and penalties provided therein are imposed in different situations and reasons. Surely then, penalty proposed under Section 114A in the notice cannot be imposed under Section 112 in the adjudication order. Section 112 and Section 114A are certainly not interchangeable legal provisions nor are they statutory synonyms - decision of the Hon'ble High Court Delhi in CC (Import & General) Vs Care Foundation [2014 (3) TMI 641 - DELHI HIGH COURT], relied upon, where it was unequivocally held that if Section 112 of the Customs Act is not invoked, penalty should not be imposed under it on the ground that it could have been imposed. In the event, we find that penalty imposed under Section 112 on the appellant in the impugned order is not supported by any show cause notice thereat and hence will have to be set aside, which we hereby do. There is an allegation in the SCN that the appellant had connived with Kunal Overseas in obtaining duty free licence in the name of Kunal Overseas and after taking possessionof the goods were instrumental in illegal diversion and sale in the local market for monetary gain - there is no legal sanction for such adjustment and appropriation of monies deposited by one person towards liability of another. It is not even the case that appellants have given No Objection Certificate or a carte blanche of any sort to the department to go ahead with such adjustment / appropriation. This being so, the impugned adjustment / appropriation is unsustainable in law. The order of the adjudicating authority for adjustment of ₹ 28,00,000/- (Rupees twenty eight lakhs only) towards penalty imposed on another person will require to be set aside, which we hereby do - appeal allowed - decided in favor of appellant.
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