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2015 (5) TMI 801 - DELHI HIGH COURT

2015 (5) TMI 801 - DELHI HIGH COURT - 2015 (322) E.L.T. 881 (Del.) - Imposition of penalty u/s 112 - Confiscation of goods - Jurisdiction of Commissioner - Held that:- After adjudication had taken place on the show cause notice dated 15.01.2013; which, called upon the petitioner to, inter alia, render explanation vis-a-vis the tentative view of the respondent as to why its registration should not be revoked in terms of the 2010 Regulations. Since, it is a question of lack of jurisdiction, this c .....

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Customs. It appears that, respondent no.2, has not preferred an appeal - impugned order is set aside - Decided in favour of assessee. - W.P.(C) 348/2014 & CM 691/2014 - Dated:- 6-5-2015 - MR. RAJIV SHAKDHER, J. For The Petitioner : Through: Mr Rajiv Nayar, Sr. Adv. with Mr Ajay Bhargav, Mr Susmit Pushkar & Mr Ayush A. Mehrotra, Advs. For The Respondent : Through: Mr Amit Mahajan, CGSC with Mr Krishanu Barua, Mr Rahul Kaushik & Dr. Ashwani Bhardwaj ORDER 1. This is a writ petition which .....

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/o Shri Shiv Prasad Gupta R/o S592, School Block Shakarpur, Nehru Enclave, Delhi, Shri Satendra Panwar, Superintendent Customs, IGI Airport, New Delhi and Shri Surender Singh, Inspector Customs, IGI Airport, New Delhi are required to show cause to the Commissioner of Customs (Export), New Customs House, Near I.G.I. Airport, New Delhi, within 30 days of receipt of this notice as to why penalty should not be imposed upon them under section 112(a) of the said Act. C. Further M/s TNT Express India P .....

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not only technical failure, it seems to be intentional failure and the chain of events point to the possibility of smuggling by M/s TNT Express India Pvt. Ltd. Nothing at all has been said, done or suggested which establish the bonafides of the courier company. Therefore, the responsibility of misdeclaration has to be laid at their door.... (emphasis is mine) 2. As would be evident from the extract hereinabove, the explanation vis-a-vis the issue, as to why the petitioner s registration ought no .....

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on the petitioner under Section 112(a) of the Customs Act, 1962 (in short the 1962 Act). The adjudication order, inter alia, also ordered confiscation of goods valued at ₹ 74,97,500/-. The order went on to say that the said goods would vest absolutely in the Central Government, and that, since they were perishable, they would be disposed of within one month of the order, in terms of Section 110(1A) of the 1962 Act. 3.1 In so far as Mr P.K. Tiwari is concerned, who even according to the re .....

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r company would stand to reason but not when the conclusion reached is that, in fact, there is no importer in existence. 3.3 Be that as it may, it is not disputed before me that the petitioner has preferred an appeal against the order which is pending with the Tribunal. 3.4 Nearly two months later, that is, after adjudicating upon the show cause notice, vide order dated 18.11.2013, the impugned order was passed by the respondent. This order is dated 10.01.2014. While passing the said order, very .....

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vade payment of Customs duty. (iii) Nobody has claimed ownership of the seized goods. (iv) M/s TNT Express India Pvt. Ltd. did not present the goods for examination although the same was marked for examination by the assessing officer. (v) M/s TNT Express India Pvt. Ltd. failed to fulfil the obligations stipulated under Regulation 12(iii) and (iv) of the Courier Imports and Exports (Electronic Declaration and Processing) Regulations, 2010. The said provisions are as under: Regulation 12(iii) Adv .....

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information. (vi) Shri Rakesh Kumar Gupta representative of M/s TNT India Pvt. Ltd. has failed to fulfil his duty of presenting the goods for examination before the Customs Officer as admitted in his statement dated 14.08.2012.... 3.5 It may be pertinent, at this stage, to extract paragraph 10 of the show cause notice dated 15.01.2013, which had identical assertion. The said paragraph, for the sake of convenience, is extracted below: ....10. From the above investigations, the following emerge:- .....

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d., failed to fulfil the obligations stipulated under Regulation 12(iii) and (iv) of the Courier Imports and Exports (Electronic Declaration and Processing) Regulations, 2010. The said provisions are as under.... 4. In the adjudication order dated 18.11.2013, the tentative results of the investigation, as recorded in the show cause notice dated 15.01.2013, have been confirmed. Despite this situation obtaining, as indicated above, only consequences which befell the petitioner, was the imposition .....

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l for respondent no.2, as to whether the adjudicating officer had been rendered in functus officio with regard to the impugned order. 6. Learned counsel for respondent no.2 submits that the imposition of penalty, in the adjudication order dated 18.11.2013, was in exercise of powers under Section 112(a) of the 1962 Act. It is his contention that the impugned order suspending the petitioner s registration, pending further action for revocation, has been passed under the 2010 Regulations. 6.1 Furth .....

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