TMI Blog2013 (9) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... ssesse set aside - uphold the confirmation of duty liability and interest thereof, we find that the - Assesse had made out a case for setting aside the confiscation ordered by the adjudicating authority and also for setting aside the penalties imposed u/s112 – Decided partly in favor of assessee. - Appeal No.C/58/2006 - - - Dated:- 19-12-2012 - MR. M.V. RAVINDRAN AND MR. B.S.V. MURTHY, JJ. For the Appellant: Shri Hardik Modh, Adv. For the Respondent: Dr. Jeetesh Nagori, Addl. Commr.(AR). JUDGEMENT Per: M.V. Ravindran: This appeal is directed against Order-in-Original No.25/BVR/ Commr/2006, dt.29.08.2006. 2. The relevant facts that arise for consideration are that the appellant herein was a 100% EOU and had opted to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.5 lakhs under Section 112 read with Section 72 of Customs Act, 1962. 3. Aggrieved by such an order, the appellants are before us. 4. Ld. Counsel, at the outset, submits that the appellant is not disputing the liability to pay the Customs duty and interest thereof at appropriate rate as provided in the notification, the benefit of which was availed by them. It is his submission that the appellant has tried his level best to procure loan from various financial corporations for the purpose of reviving their unit and takes us through the correspondence made. It is his submission that the appellants efforts to raise capital for reviving their unit with the machineries imported by them failed. It is his submission that the appellants are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (wherein I was one of the Member of the Bench) had specifically held that the liability to pay the Customs duty along with interest, arises in the absence of any fulfillment of export obligation against the machinery imported by availing the benefit of Notification No.53/97-Cus and held that the said machinery are not liable to be confiscated and penalty should not be imposed. 8. Respectfully, we reproduce the said ratio as under: 12. We have heard both sides and carefully considered the case records and submissions made by both sides. In the instant case, the appellants had submitted that they were forced to close down the business owing to problems such as lack of orders, internal competition, low prices and working capital. They had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CEGAT, West Regional Bench, in the case of Philips India Ltd. v. CC, Mumbai reported in 2001 (137) E.L.T. 697 wherein the confiscation of the goods and imposition of penalty was set aside. In that case also the same Notification i.e. No. 160/92-Cus. and Para 38 of the EXIM Policy was dealt with. We would also like to observe that the Hon ble Supreme Court in the case of Hindustan Steel Ltd. v. State of Orissa, has held that penalty will not also be imposed merely because it is lawful to do so. Where penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Following the ratio of the above decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terials and imposing redemption fine and penalty on the EOU. The above said ratio will squarely apply to the case in hand before us. 9. In view of the foregoing, while upholding the confirmation of duty liability and interest thereof, we find that the appellant has made out a case for setting aside the confiscation ordered by the adjudicating authority and also for setting aside the penalties imposed under Section 112 of Customs Act, 1962. We do so. 10. The impugned order to the extent it holds the machinery imported by the appellant are liable for confiscation, is set aside and the penalties imposed on the appellant are also set aside. 11. The appeals are disposed off as indicated hereinabove. (Operative portion of the order pron ..... X X X X Extracts X X X X X X X X Extracts X X X X
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