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2020 (2) TMI 233 - AT - CustomsFraudulent removal of imported goods without payment of proper customs duties - contravention of the provisions of Section 12 of Customs Act, 1962, read with Notification no. 34/97 dated 07.04.1997 - Wilful presentation of wrong documents - Confiscation - penalties - HELD THAT:- The Show Cause Notice dated 13.03.2009 demanded only part of duty that has been debited by the respondents, from the DEPB License in respect of the Ex-Bond Bill of Entry. The demand made in the Show Cause Notice dated 11.03.2010 was in respect of the entire amount of duty that was to be paid in respect of the said ex-bond Bill of Entries. Commissioner has by removing the Ex Bond Bill of Entries covered by the Show Cause Notice dated 13.03.2009 from the demand made in the Show Cause Notice dated 11.03.2010, has without considering the demand made in respect of said Ex Bond Bill of Entries by the second show cause notice limited the demand to the amount shown to be paid by utilizing the DEPB License. Since Commissioner has instead of reducing the overlapping demand made by the two show cause notice, removed the entire demand made against those ex-bond Bill of Entries by Show Cause Notice dated 11.03.2010, which were covered by earlier Notice dated 13.03.2009 we are not in position to uphold the impugned order in this respect. In our view Commissioner should have recorded finding in respect of each Bill of Entry covered by Show Cause Notice dated 11.03.2010 and then confirmed our dropped the demand made. If there was any overlapping demand in the two show cause notices, then the demands should have been adjusted to the extent of overlap. Thus the matter needs to be remanded back to the adjudicating authority to re-determine the issues in respect of the Bill of Entries covered by 2nd Show Cause Notice, which have been removed by him for the reason of their being covered by 1st Show Cause Notice. Imposition of penalties u/s 112(a) of CA - HELD THAT:- From the findings recorded by the Commissioner, it is evident that he has imposed the penalty on Appellant, CHA, for his failure to discharge the obligations cast on him in terms of Regulation 13 of Custom House Licensing Regulation 2004 and also certain activities of one of his employee namely Shri Rajesh Bhanushali - However, Hon’ble Delhi High Court has in case of COMMISSIONER OF CUSTOMS VERSUS SHIVA KHURANA [2019 (1) TMI 838 - DELHI HIGH COURT] has held there is nothing in the Regulations nor in the Customs Act which can cast such a higher responsibility as are sought to be urged by the Revenue. In the absence of any indication that the CHA concerned was complicit in the facts of a particular case, it cannot ordinarily be held liable - penalty cannot be upheld and is set aside. Appeal allowed by way of remand.
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