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M/s Essar Oil Limited Versus Commissioner of Customs

2015 (5) TMI 942 - CESTAT AHMEDABAD

Imposition of penalty - Non furnishment of documents - Change in penalty section from section 117 to Regulation 5 of the Customs Regulations 2011 - Held that:- There is no mala fide intention on the part of the importer to evade any duty and was following a practice. Appellant in reply to the show cause notices asked for extension of time which the Adjudicating Authority should have allowed - Adjudicating authority imposed penalties under Section 117 of the Customs Act 1962 by penalties so impos .....

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. Thakur, Hon ble Member (Technical),J. For the Petitioner : Shri Nikhil Rungta, Advocate, Ms Dimple Gohil, Advocate For the Respondent : Shri S K Shukla, Authorised Representative ORDER Per : Mr. H K Thakur; All these appeals have been filed by the appellant with respect to OIA Nos 165-177/2014/CUS/COMMR(A)/JMR dtd 8.5.2014. Under these orders the First Appellate Authority has held that penalty is required to be imposed upon the appellant under Regulation 5 of the Customs (Provisional Duty Asse .....

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imposed under Regulation 5 of the Customs (Provisional Duty Assessment) Regulations 2011. It was the case of the appellant that once the show cause notices, proposing penalty under Section 117 of the Customs Act 1962, have been issued, penalties cannot be imposed under Regulation 5 of the Customs Regulations 2011. It was also his case that it was a practice in the Customs House for imports of Crude Oil by the appellant that the required documents were produced after a period of one month and dif .....

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quested that the period required till furnishing of the documents should be extended by the Adjudicating Authority as required under the Custom Regulations 2011. 3. Shri S K Shukla, Authorised Representative, appearing on behalf of the Revenue argued that offence committed by the appellant has remained the same; therefore, it does not make any difference, if penalty is imposed under Section 117 of the Customs Act 1962 or under Regulation 5 of the Customs Regulations 2011. So far as extension of .....

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d the case records. The appellant was importing Crude Oil for which assessments were made provisional subject to production of certain documents. From the records, it is observed that the nature of documents etc. was such that the same could not be produced within a period of 30 days. It is the case of the appellant that for the earlier period also such documents were furnished after a period of 30 days from the date of provisional assessment and no penalties were imposed upon the appellant and .....

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per Regulations 3(3) where the assessment is allowed provisionally pending production of certain documents, a Bond is required to be given which shall contain an undertaking that the importer shall produce such documents within one month on any further period extended by the proper may allowed. There is no mention of an application required to be filed by the importer to seek extension. Further, as per Regulations 3(3) and 5 an importer who violates any of the provisions of these Regulations sh .....

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should have extended the period as requested in Para 9 (reproduced blow) in appellants reply dt. 15.1.2014 to the show cause notice dt. 30.9.2013. We, therefore, request your goodself to take into account the aforesaid facts and be kind enough to finalise the assessment without imposing any penalty. It is also prayed that if your goodself feels that the condition of the PD Bond, as extracted above, has been contravened then your goodself may in exercise of the power vested with your Honour exten .....

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