TMI Blog2010 (7) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... up for disposal, together. 3. The brief facts of the case are that the importer filed a Bill of Entry on 26-8-2008 through CHA for clearance of hand held x-ray tube based analyzer system for ore analysis and claimed exemption of Customs and Central Excise Notifications No. 21/2002 and 10/2006 respectively. During the verification under the RMS system it was found that the benefit of the Notifications was not available to the importer. Therefore, the proceedings were initiated against them and the goods were confiscated and redeemed on payment of redemption fine of Rs. 1.2 lakhs and penalty of Rs. 10,000/- was imposed upon the importer under Section 112(a) of Customs Act 1962 and Rs. 50,000/- on CHA under Section 112(b). 4. The conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the penalty on the importer itself has been set aside therefore, penalty on them cannot be upheld. 5. The contention of the department is that the claim of benefit of notification was not a mistake on the part of the importer/CHA but it was deliberate attempt to evade payment of duty and their contention is that 111(o) has been rightly applicable and has been rightly invoked in their case. 6. I have perused the records and considered the submissions made by both sides. The Ld. JDR has emphatically submitted that the claim of benefit of notification is not a mistake but a deliberate attempt to evade duty. Ld. Commissioner in the impugned order-in-appeal held it as a blatant mistake , the same is now being termed as deliberate action, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, I find that there is no misdeclaration of description of goods. The claim is always subject to scrutiny, therefore, it cannot be equated with the availment and in turn it cannot be termed as misdeclaration merely on the premise that they have claimed the benefit. The Tribunal in the case of J.K. Industries Ltd., (supra) held that as there was no misdeclaration of the goods. Therefore, I find that the confiscation of the goods in question is not sustainable in law. The Ld. Commissioner (Appeals) has absolved the importer from penalty and department has not challenged the same. Once the penalty upon the importer is set aside there is no justification in imposing penalty on the CHA, since the department has not brought out anything to show ..... X X X X Extracts X X X X X X X X Extracts X X X X
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