TMI Blog2011 (6) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by Notification No. 6/07-C.E., dated 1-3-2007. Consequently, they cannot, also, claim the benefit of Notification No. 20/2006-Cus., dated 1-3-2006 (entry No. 1) in respect of SAD. - Assessee is liable to pay duties of customs - penalties levied u/s 112 confirmed - decided against the assessee. - C/363 & 369/2009 - A/189-190/2011-WZB/C-I/(CSTB) - Dated:- 17-6-2011 - S/Shri P.G. Chacko, Sahab Singh, JJ. REPRESENTED BY : S/Shri D.B. Shroff, Sr. Advocate, with H.C. Daruwalla, Advocate, for the Appellant. Shri W.L. Hangshing, JCDR, for the Respondent. [Order per : P.G. Chacko, Member (J)]. In the first appeal, M/s. King Rotors Air Charter Pvt. Ltd. (the assessee) have challenged demand of duty of Rs. 8,68,53,254/- confirmed against them by the Commissioner of Customs in respect of one Bell Helicopter (Model No. 412-EP, Sr. No. 36454) imported by them and cleared under Bill of Entry No. 520260 dated 5-4-2008 availing exemption from payment of (i) Basic Customs Duty under Notification No. 21/2002-Cus., dated 1-3-2002 (serial No. 347B) as amended by Notification No. 61/2007-Cus., dated 3-5-2007, (ii) Additional Customs Duty (countervailing duty) under Notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cus., as amended by Notification No. 61/2007-Cus., undertaking to use the helicopter only for providing non-scheduled (passenger) services and to pay the duty thereon in the event of their failure to comply with the said condition of the Notification. The Bill of Entry was assessed by the assessing authority extending the benefit of exemption from all duties and, accordingly, the helicopter was allowed to be cleared by the assessee. 3. Subsequently, suspecting misuse of the helicopter by the assessee, the Central Intelligence Unit (CIU) of the Air Cargo Complex launched investigations. The CIU, by letter dated 26-4-2008, requested the assessee to forward the documents relating to the clearance of the helicopter and also documents evidencing its end-use. But the assessee did not submit any documentary evidence of end-use of the helicopter. Therefore, by a summons, the Managing Director of the company was asked to appear before the investigating officer and produce documents such as logbook, copies of monthly return and annual return submitted to DGCA in connection with the end-use of the imported helicopter. In response to the summons, the party submitted copies of passenger manif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the helicopter which was allegedly not used for the purpose intended by DGCA. 5. On the above basis, the Commissioner of Customs issued a show-cause notice to the assessee proposing (a) to deny them the benefit of the Notifications and recover duty on the helicopter, (b) to confiscate the aircraft under Section 111(d) (o) of the Customs Act, (c) to levy interest on duty under Section 28AB of the Act and (d) to impose penalties under Sections 112 and 114A of the Act. The same show cause notice also proposed a penalty on the Managing Director of the company under Section 112 of the Act. The above proposals were contested by the noticees. It was in adjudication of this dispute that the learned Commissioner of Customs (Import) passed the impugned order. Hon ble High Court s Direction and its Pursuance 6. The order passed by the Appellate Tribunal on 16-4-2010 under Section 129E of the Customs Act directing the assessee to pre-deposit 50% of the duty amount and the subsequent order dated 2-7-2010 of the Tribunal dismissing the assessee s appeal on the ground of non-compliance were challenged by them in Customs Appeal No. 36 of 2010 before the Hon ble High Court. By order dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant Commissioner of Customs, as the case may be, at the time of importation that : (a) the said aircraft shall be used only for providing non-scheduled (passenger) services or non-scheduled (charter) services, as the case may be; and (b) he shall pay on demand, in the event of his failure to use the imported aircraft for the specified purposes, an amount equal to the duty payable on the said aircraft but for the exemption under this notification : Explanation For the purposes of this entry, - (a) operator means a person, organization, or enterprise engaged in or offering to engage in aircraft operation; (b) non-scheduled (passenger) services means air transport services other than scheduled (passenger) air transport services as defined in rule 3 of the Aircraft Rules, 1937; (c) non-scheduled (charter) services means services provided by a non-scheduled (charter) air transport operator , for charter or hire of an aircraft to any person, with published tariff, and who is registered with and approved by Directorate General of Civil Aviation for such purposes, and who conforms to the civil aviation requirement under the provision of Rule 133A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope of the permit. The condition No. 104 ibid was prescribed for the benefit of non-scheduled operators, irrespective of whether they carried out passenger operations or charter operations. It did not create any dichotomy between non-scheduled air transport services (passenger) and non-scheduled air transport services (charter operations) to ensure that each kind of operations should be to the exclusion of the other. The learned counsel, in this context, relied on clause 9.2 of Passenger CAR , which reads thus :- Non-scheduled operators can conduct charter/non-scheduled operations for transportation by air of persons, mail or goods. In such operations, the operators shall not publish their time schedules as the operations are of non-scheduled nature. The learned counsel, in this context, also claimed support from certain clarificatory letters issued by DGCA, viz. (i) letter dated 15-12-2009 issued to M/s. International Air Charter Operations India Pvt. Ltd. clarifying that an operator having NSOP (passenger) can conduct charter operations as per para 9.2 of the Civil Aviation Requirements, Section 3, Series C Part III ; (ii) letter dated 15-7-2009 to the Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d air transport service operator; (ii) non-scheduled air transport service operator; (iii) private owners. Import of aircraft for scheduled air transport services (first category) was exempt from payment of customs duty in terms of serial No. 346B of Notification 21/2002-Cus. as amended by Notification 20/2007-Cus., dated 1-3-2007. Import of aircraft for non-scheduled air transport services (second category) came to be exempted from payment of customs duty in terms of serial No. 347B of Notification 21/2002-Cus. as amended by Notification 61/2007-Cus., dated 3-5-2007. Import of aircraft for purely private use (third category) remained dutiable, which was the legislative intent expressed in the Finance Minister s Budget Speech of 28-2-2007. The learned counsel was referring to para 140 of the Finance Minister s Budget Speech, reading as follows :- 140. Import of aircraft, including helicopters, by Government and scheduled airlines is, at present, exempt from all duties, and that position will continue. However, there is no reason to allow the exemption to other private importers. Hence, I propose to levy an import duty of 3 per cent, which is the WTO bound rate, on all private im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of condition No. 104 of the Exemption Notification with reference to the provisions of Passenger CAR , the learned counsel raised the alternative plea that condition No. 104 ibid needed to be interpreted in the light of New CAR (Civil Aviation Requirement, Section 3, Air Transport Series C , Part III, Issue II issued on 1st June 2010). Here, he was pressing into service the additional grounds (dd) and (ee) of the assessee s memorandum of appeal. It was submitted that clause 3.3 of New CAR defined non-scheduled air transport service wide to include, both passenger service and charter service. It was contended that this provision of New CAR eliminated the dichotomy, if any, between non-scheduled (passenger) services and non-scheduled (charter) services. It was also argued that New CAR had retrospective effect by virtue of clause 2.7 thereof and hence could be made applicable to the present case. 16. Without prejudice, it was further submitted that the assessee was entitled to the benefit of Notification No. 21/2002-Cus. (serial No. 347B) as amended by the latest Notification 21/2011-Cus., dated 1-3-2011. The learned counsel referred to the newly added Explanation 2 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copter. It was argued that the legislative intent underlying the Exemption Notification was to exempt only those aircrafts which were operated in the public domain. As the assessee did not operate the helicopter in the public domain, they were not eligible for the benefit. Mr. Hangshing broadly classified aircraft operations into (a) scheduled operations and (b) non-scheduled operations. Scheduled operations were covered by the expression scheduled air transport service defined under Rule 3(49). On the strength of this definition, the learned JCDR pointed out that all scheduled operations fell in the public domain and hence an aircraft imported for such operations was exempted from payment of duty under Sr. No. 346B of Notification 21/2002-Cus. as amended by Notification 20/2007-Cus. Non-scheduled operations could be further classified into (a) passenger operations and (b) charter operations. Charter operations could be either for private use or for public use. It was argued that only charter operations in the public domain were covered by clause (c) of Explanation to condition No. 104 of Notification No. 21/2002-Cus. as amended by Notification No. 61/2007-Cus. JCDR sought to att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty on the helicopter under Notification 21/2002-Cus. (serial No. 347B) as amended by Notification 61/2007-Cus. 22. Canvassing support for the independent jurisdiction of Customs department vis-a-vis Civil Aviation department as to whether the assessee used the copter for air transport service as undertaken to the Customs department, the learned JCDR relied on Sheshank Sea Foods Pvt. Ltd. v. UOI - 1996 (88) E.L.T. 626 (S.C.) and Surya Samudra Holiday Resorts (P) Ltd. v. Commissioner - 2010 (256) E.L.T. 433 (Tri.-Mum). 23. With regard to the Tribunal s decision in Sameer Gehlot s (AASPL s) case (supra), the learned JCDR submitted that the department had since filed Civil Appeal in the Supreme Court and, therefore, the Tribunal s decision was not liable to be followed as a precedent. The learned JCDR also made an endeavour to distinguish the case in hand from the case of AASPL. Consideration and decision 24.1 We have given careful consideration to the submissions. The substantive issue is whether the assessee is entitled to exemption from payment of duties of customs on the helicopter imported by them vide Bill of Entry No. 520260 dated 5-4-2008 wherein they claimed exempti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rter-Hire Agreement dated 14-4-2008). The applicable CAR is Passenger CAR . DGCA s No Objection for Import itself indicates the purpose for which aircraft is required , which is Non-scheduled Air Transport (Passenger) Services . DGCA s covering letter dated 13-3-2008 says: This office has No Objection to the import of One Bell-412 helicopter S.No. 36454 for Non-scheduled Air Transport (Passenger) Services . Thus it is abundantly clear from the records that DGCA s permission to the assessee is only to operate non-scheduled passenger services with the helicopter imported by them. If the parenthetic appearance of both the words passenger and charter [ (Passenger/Cargo/Charter) ] in the description of air transport services in the printed format of Permit No. 11/2006 created any doubt in the appellants mind, it was enough for them to read the mind of the authority which issued the permit. The issuing authority s mind is reflected in the full text of the permit and connected documents. The permission is to operate non-scheduled passenger services with the imported helicopter, and not charter services. 24.3 In any case, the appellants have not produced any clarification o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly for providing non-scheduled operator permit passenger services. (2) We will pay on demand the tariff and as per notification stated above in the event of failure to comply with 1 2 as per notification 021/2002 Sr. No. - 347B as per the Deputy Commissioner may specify in this behalf. We shall bond to oblige under section 142 of Customs Act 1962. In witness whereof the parties bore to have only executed this bond. In case of failure to comply with this condition we shall pay the necessary duties. For King Rotors Air Charters Pvt. Ltd. Sd/- Authorised Signatory [underlinings added] Obviously, the assessee undertook to use the helicopter only for providing non-scheduled passenger services. They also undertook to pay on demand the necessary duties of customs in the event of non-compliance. 24.6 The question now to be considered is whether the assessee used the imported helicopter for the avowed purpose. It is not in dispute that, under a charter-hire agreement dated 14-4-2008 with Heligo, the assessee allowed the helicopter to be used by Heligo for the purpose of mobilizing and demobilizing of personnel of thir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or people in general [Collins Dictionary of the English Language] public = the people as a whole; community at large [New World Dictionary of the American Language] public = people collectively [The New Shorter Oxford English Dictionary] public = ordinary people in general; the community [Concise Oxford English Dictionary - Indian Edition] the public = ordinary people in society in general; [Oxford Advanced Learner s Dictionary of Current English, 7th Edition] Members of the public are natural persons and cannot be juristic persons like the third party companies which chartered the aircraft from Heligo. 24.7 Non-scheduled passenger services has been defined in clause (b) of Explanation to condition No. 104 and the same means air transport services other than scheduled (passenger) air transport services as defined in Rule 3 of the Aircraft Rules, 1937. [Incidentally, we note that the expression non- scheduled air transport services (passenger) is defined in the same way in clause (2) of Passenger CAR .] Scheduled air transport service has been defined under Rule 3(49) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use by members of the public. As the flight operations in this case were not open to the public, the helicopter cannot be held to have been used for non-scheduled (passenger) services . 24.8 As condition No. 104 itself refers to Rule 3 of the Aircraft Rules, 1937 in the context of defining the expression non-scheduled (passenger) services , it is permissible to take aid of the said Rule in ascertaining the connotation of the word passenger used in the expression non-scheduled (passenger) services . Rule 3(39) defines passenger aircraft as aircraft which effects public transport of passengers. Public transport is also seen defined under Rule 3(45). In the instant case, it is not the claim of the appellants that they used the helicopter for public transport of passengers. They only allowed Heligo to hire the aircraft for a remuneration and use it for transporting employees of Oil Gas/allied companies between Vishakapatnam airport and offshore oil/gas fields under contracts awarded to Heligo by those companies. The appellants were unable to use the copter (during the tenure of the agreement) for any other purpose without the prior consent of Heligo. They did not have any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found by the adjudicating authority. [The submission in the assessee s appeal that there was no such allegation in the show-cause notice is factually incorrect]. Moreover, Charter CAR did not permit a 13-seater helicopter to be used for non-scheduled (charter) services. Therefore the air transport operations undertaken with the helicopter would not fit in the definition of non-scheduled (charter) services under clause (c) of Explanation to condition No. 104. The argument of the assessee s counsel that clause (c) of the Explanation is irrelevant is fallacious inasmuch as it is their own case that the scope of non-scheduled (passenger) services is wide enough to include non-scheduled (charter) operations undertaken with the imported helicopter. Condition No. 104 is a substantive condition attached to entry No. 347B of the Exemption Notification and the same has to be considered and construed in its entirety including the said clause (c). The interpretation of such a condition of Exemption Notification cannot be liberal as canvassed by the counsel lest it should defeat the very purpose of exemption. Contextually, we may also add that the view taken by Apex Court in The Tata Oil Mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this matter. The cases of Bombay Chemicals [1982 (10) E.L.T. 171 (Bom.)] and Honeywell Technology [2008 (231) E.L.T. 592 (Tribunal)] relied on by the assessee were correctly distinguished by the learned Commissioner. In our view, where non-scheduled (passenger) services and non-scheduled (charter) services have been defined in the Notification and the mutual exclusivity of these services has also been clearly spelt out therein, it is not permissible to borrow the definitions or other provisions from the Aircraft Rules or any CAR issued thereunder, for reading down the provisions of the Notification issued under Section 25 of the Customs Act. The Hon ble Bombay High Court s decision in Dimexon s case (vide supra) lends support to this view. Para (5) of the High Court s judgment is reproduced below :- 5. When there be two Acts, may be both Special Acts what has first to be examined is the field that they cover. Duty is payable pursuant to the Customs Act. The Import and Export Act regulates the import or export of goods. In so far as levy of customs duty is concerned, the Customs Act is the Special Act. The issue whether any goods can be imported or exported has nothing to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (passenger) services. In terms of clause (ii) of the said condition, the importer undertook to the Customs department to use the imported helicopter for the said purpose only. As we have already observed, the correlative right to monitor the manner of use of the aircraft and determine whether it was being used for the said purpose as undertaken vested in the Customs department. The DGCA s authority to monitor the manner of utilization of the permit is, subtly, another thing which can, in no way, affect the above jurisdiction of the Customs department. In the case of Sheshank Sea Foods Pvt. Ltd. (vide supra), the Hon ble Supreme Court was considering a somewhat analogous question, i.e., whether the jurisdiction of Customs authorities under Ministry of Finance to investigate into the alleged domestic disposal of the imported (exempt) material in violation of a condition of Exemption Notification No. 116/88-Cus. was affected by the jurisdiction of the licensing authority under Ministry of Commerce to investigate into the alleged non-discharge of export obligation by the importer in breach of Import Export Policy, 1988-91. The court s decision was as follows :- 10. We do not find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plea of retrospective operation of New CAR is untenable as this CAR does not say that it has retrospective effect. The document on its face indicates that the provisions are effective from 1st June 2010 ( Effective: Forthwith ). Moreover, it appears from clause (2.7) ibid that a holder of NSOP issued prior to 1-6-2010 has to comply with the requirements of clause 4.2(b) of New CAR within six months from the date of effectivity (1-6-2010) of this CAR if he wants this CAR to be applicable to his permit. Clause 4.2(b) requires the NSOP holder to have a minimum paid-up capital as prescribed therein and to submit a certificate from the Banker/Chartered Accountant to confirm the paid-up capital of the company. This requirement has to be fulfilled within 6 months from 1-6-2010 by the permit-holder so that New CAR becomes applicable to his old permit w.e.f. 1-6-2010. The appellants have not claimed to have fulfilled the requirement. Even if it be assumed that they duly fulfilled it, the effect would be that the provisions of New CAR became applicable to their permit w.e.f. 1-6-2010, i.e., only prospectively. Therefore, the provisions of New CAR will not be retrospectively app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d (charter) air transport operator, for charter or hire of an aircraft to any person, with published tariff, and who is registered with and approved by Directorate General of Civil Aviation for such purposes, and who conforms to the civil aviation requirement under the provision of rule 133A of the Aircraft Rules 1937: 2. For the purposes of this exemption, use of such imported aircraft by a non-scheduled (passenger) operator for non-scheduled (charter) services or by a non-scheduled (charter) operator for non-scheduled (passenger) services, shall not be construed to be a violation of the conditions of import at concessional rate of duty. (underlining added) Two significant changes are that (1) the expression as the case may be which was present in erstwhile clause (ii)(a) of condition No. 104 came to be deleted vide new clause (iii)(a) and (2) Explanation 2 was added. Prior to the amendment, clause (ii)(a) of condition No. 104 read thus :- The said aircraft shall be used only for providing non-scheduled (passenger) services or non-scheduled (charter) services as the case may be . After the amendment, the relevant clause [(iii)(a)] reads ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Government, apparently, took note of the changed scenario and issued Notification No. 21/2011-Cus. deleting the expression as the case may be from clause (ii)(a) of condition No. 104 and adding a new Explanation to the said condition. As the import in question took place during the previous regime, the importer cannot claim the benefit of the amending Notification 21/2011-Cus., dated 1-3-2011. 24.17 The learned counsel for the appellants has also strongly opined that the substantive issue in this case is squarely covered by the decision of the co-ordinate Bench in Sameer Gehlot s case [supra). In that case, M/s. Airmid Aviation Services Pvt. Ltd. (AASPL, for short) had imported a helicopter in February 2008 availing exemption under Notification 21/2002-Cus., dated 1-3-2002 (serial No. 347B) as amended by Notification 61/2007-Cus. The benefit was availed by the importer by producing permit dated 30-1-2008 issued by DGCA for operating non-scheduled air transport services (passenger). Subsequent to the duty-free clearance of the aircraft by AASPL, the department issued a show-cause notice to them demanding customs duty of over Rs. 6.74 crores, proposing to confiscate th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... say that we are unable to persuade ourselves to follow Sameer Gehlot (supra) as a binding precedent, for the following reasons :- (a) The decision in that case holding the importer (AASPL) to be eligible for exemption from payment of duty of customs on the helicopter under Notification 21/2002-Cus. (serial No. 347B) as amended by Notification 61/2007-Cus. is based inter alia on the premise that the second part [i.e., clause (ii)] of condition No. 104 is also a pre-importation condition. This part of the condition is to the effect that the importer should furnish, at the time of importation, an undertaking to the Deputy Commissioner of Customs or the Assistant Commissioner of Customs that (a) the imported aircraft shall be used only for providing non-scheduled (passenger) services or non-scheduled (charter) services, as the case may be, and (b) that he shall pay on demand, in the event of his failure to use the aircraft for the specified purpose, an amount equal to the duty payable on the aircraft but for the exemption under the Notification. To our mind, this condition relating to undertaking has two aspects viz. the factum of undertaking and the subject of undertaking. The v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the assessee was being honoured by them. By examining the terms of the charter-hire agreement between the assessee and Heligo and by conducting scrutiny of connected documents and by collecting further information from the assessee in relation to the flight operations conducted under the said agreement, the department ascertained whether the assessee was acting in terms of the undertaking furnished by them. (II) In AASPL s case, the Bench also considered a few letters issued by DGCA clarifying that a permit to operate non-scheduled (passenger) services also allowed the operator to operate non-scheduled (charter) services. It is not clear whether such letters were issued in relation to the permit granted by DGCA to AASPL or to some other operators. In the present case, it is not in dispute that DGCA is yet to give a reply to the assessee s request for clarification. (III) In the case of AASPL, there was no proposal in the show-cause notice to deny them exemption on the ground that the imported aircraft was used for charter services without published tariff, unlike in the present case. (c) It appears from the judgment of the co-ordinate Bench that it considered a letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e demand of duty raised by the adjudicating authority in terms of the bond executed by them. It is submitted that no demand of this kind was proposed in the show-cause notice, which invoked Section 28(1) of the Customs Act read with the undertaking dated 5-4-2008 of the appellants. This objection has been reiterated in the written submissions also. JCDR has cited two decisions, viz., Endress + Hauser Flowtec (I) Pvt. Ltd. v. Commissioner - 2009 (237) E.L.T. 598 (Tri.-Mum.) and Sravani Impex (P) Ltd. v. DRI, 2010 (252) E.L.T. 19 (A.P.) in his bid to defend the Commissioner s order. After considering the submissions, we have not found any substance in the aforesaid submission made by the appellants. It is not in dispute that the show-cause notice invoked the applicable provision of law, viz., Section 28(1) of the Customs Act to demand duty. As the demand arose out of violation of clause (ii)(a) of condition No. 104 of the Exemption Notification, the assessee s undertaking to pay the duty on demand in the event of such violation [vide clause (ii)(b) of condition No. 104] was also appropriately invoked in the show-cause notice. The order-in-original in para (32) thereof says that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 28 as alleged . In the impugned order, a reference to time-bar is seen in para (32) which reads as follows :- 32. However, I find that this is a matter of interpretation of Notification 21/2002-Cus. There is no collusion, willful mis-statement or suppression of facts on the part of KRACPL or its Managing Director. Therefore, I do not consider it necessary to impose any penalty under section 114A of the Customs Act, 1962. But this finding does not ipso facto mean that the demand for duty is time barred. The duty is payable in terms of the Bond executed under Condition 104 of Notification 21/2002-Cus. In the assessee s appeal, the challenge is seen confined to one sentence reading: The Commissioner failed to appreciate that the demand under the show-cause notice was time-barred . Nothing was added by amending the memorandum of appeal, nor was the above challenge sought to be amplified through written submissions or otherwise at the bar. The assessee has not set up any firm contest vis-a-vis the extended period of limitation invoked in the SCN on the alleged ground of suppression and wilful misstatement of facts. (ii) Yet another reason for rejecting the plea of limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of DGCA s permit. Such user of the helicopter rendered it liable to confiscation under Section 111(d) of the Customs Act for want of import licence from DGFT. The appellants cleared the aircraft at Customs free of duty by availing exemption subject to a post-importation condition but subsequently violated the condition thereby rendering the goods liable to confiscation under Section 111(o) of the Act also. The learned Commissioner s order of confiscation is, therefore, liable to be upheld. As no grievance has been raised against imposition of fine in lieu of confiscation, no question arises as to the quantum of fine. 28. As to penalty : (i) Any issue as to penalty under Section 114A of the Customs Act has not arisen in these appeals. (ii) The appellants are aggrieved by the penalties imposed on them under Section 112 of the Act. Their contention is that no such penalty could have been imposed on them inasmuch as (a) the helicopter was not liable to confiscation and (b) the adjudicating authority itself found that there was no collusion, wilful misstatement or suppression of facts on their part. It is submitted that they did not do anything contumaciously or mala fide and henc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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