9911796707
TMI Blog2015 (4) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... n the negative against such exercise of power by the Tribunal as held in 2008(231) E.L.T.(SC) and 2009 (238) ELT 3 (SC)? 2. Whether the order of CESTAT, waiving the penalty imposed under Section 112 of the Customs Act 1962 for commission of an offence which rendered the goods for confiscation under Section 111 of the Customs Act 1962, is correct when CESTAT has upheld the confiscation of the goods under Section 111 of the Act ibid? 2. The first substantial question of law admitted by this Court does not arise for consideration in the facts of the present case, since the adjudication order does not contemplate imposition of mandatory penalty. However, the second question of law requires consideration in the facts of the present case. 3. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid order of the Tribunal, the Revenue is before this Court contending that on confiscation, penalty shall be imposed as per the provisions of the Customs Act. 6. Heard learned Standing Counsel appearing for the appellant and the learned counsel appearing for the respondent and perused the materials placed before this Court. 7. We find that the contention of the Department appears to be justified for more than one reason. Section 112 of the Customs Act provides for imposition of penalty, which reads as follows: "SECTION 112. Penalty for improper importation of goods, etc. Any person, - (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , to a penalty not exceeding the duty sought to be evaded on such goods or the difference between the declared value and the value thereof or five thousand rupees, whichever is the highest." 8. A plain reading of Section 112 of the Customs Act makes it clear that once confiscation is ordered, levy of penalty is automatic. In the case of IVRCL Infrastructures and Projects Ltd. V. Commissioner of Customs reported in 2004 (166) ELT 447, we find that penalty has been set aside only on the ground that no adequate evidence was found, which render the goods liable for confiscation. Since there was no proper finding, the penalty was set aside. 9. In the present case, on examination of the imported goods, import documents and the correspondences b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he was fully aware that the firm had imported the subject goods. Therefore, he cannot plead ignorance of the facts. Further more, the respondent had not questioned the order of confiscation or the imposition of duty. Thus, the order of confiscation has attained finality and there is no discretion vested under Section 112(a) of the Customs Act and there is no requirement to record a finding that there has been any wilful misstatement or concealment or suppression of facts, as is found under Section 114A of the Customs Act. 13. In such view of the matter, the Tribunal was not right in setting aside the penalty imposed on the Managing Director under Section 112(a) of the Customs Act. Further, it has to be pointed out that under Section 112( ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
