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Dinabandhu Nayak Versus Commissioner of Central Excise, Kolkata-III

2016 (5) TMI 1063 - CESTAT KOLKATA

Penalty under Sec 114 of the Customs Act 1962 - Held that:- As observed from case records that Sec 112 (a) of the Customs Act 1962 has been mentioned for imposing penalty in the SCN but Adjudicating authority has imposed penalty under Sec 114 without giving any justification/opportunity to the appellant as to why suddenly penalty under Sec 114 was imposed. A corrigendum was required to be issued to effect the change & principles of natural justice were required to be followed if adjudicating aut .....

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e cartoons in the containers. Even if there was some negligence on the part of the appellant the same has been taken care of by departmental proceedings and no penalty could be imposed under the Customs Act 1962 as per the relied upon case laws. There is also no evidence on record that appellant was aware that second hand used clothes are being exported & that quantities actually being exported are much less than the quantities declared in the shipping bill. No statement has been brought on reco .....

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7 - Order No.75442/16 - Dated:- 18-5-2016 - SHRI H.K.THAKUR, MEMBER(TECHNICAL) AND SHRI P.K. CHOUDHARY, MEMBER (JUDICIAL) For the Petitioner : Shri B. N. Pal Adv For the Respondent : Shri S. Mukherjee, Suptd (AR) ORDER Per Shri H.K.Thakur This appeal has been filed by the appellant against OIO No. 43/COMMR/CE/KOL-III/2006-07 dt 23/3/2007 passed by CCE, Kolkata-III as Adjudicating authority. Under this OIO dt 23/3/2007 Adjudicating authority, interalia, imposed a penalty of ₹ 20,000/- upon .....

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ere examined by Sh. Rabindra Nath Mistri, Inspector, who was required to examine & stuff cartoons thoroughly. It was the case of the appellant that penalty in the show cause notice was proposed under Sec 112 (a) but has been imposed by Commissioner under Sec.114 of the Customs Act 1962. Learned Advocate argued that Adjudicating authority can not go beyond the scope of show cause notice as per the following case laws:- (i) CCE, Ludhiana Vs Non Bharat Engineering [2004 (163) ELT 83 (Tri.-Del)] .....

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n under Sec 113 of the Customs Act 1962 if found wrong and accordingly no penalty under Sec 114 can be imposed upon the appellant. That appellant has gone by the report of the Inspector who as per prescribed procedures conducts thirough examination & stuffing. That there is no duty as per the existing departmental circulars that Supdt has to examine 100% of the packages. For this Learned Advocate relied upon the following:- (i) CC, Bangalore Vs M. Naushad [2007 (210) ELT 464 (Tri.-Bang)] (ii .....

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examination of the containers & was found negligent. It was thus his case that appellant was correctly visited with penalty under Sec 114 of the CA 1962. That it is a settled legal position that mention of wrong Section in the show cause notice does not vitiates the proceeding if penalty was imposed correctly under Sec 114 of the CA 1962. Learned AR relied upon the case law Zaki Anwar Vs CC, New Delhi [2006 (197) ELT 510 (Tri.-Del)] where penalty imposed on the Inspector under similar facts .....

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e & examine 100% cartoons being stuffed which was within the duties of inspector Sh. R.N. Mistri. (iii) That no declaration / entry is required to be made in the shipping bill by the appellant making the goods liable for confiscation under Sec 113 & making appellant liable to penalty under Sec 114 of the Customs Act 1962. 5. So for as point at Para-4 (i) above is concerned it is observed from case records that Sec 112 (a) of the Customs Act 1962 has been mentioned for imposing penalty in .....

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ective procedure, Adjudicating authority has gone beyond the scope of show cause notice which is not permissible as per case laws relied upon by the appellant, which also include ratios laid down by Apex Court. 6. So for as issue at Para-4 (ii) above is concerned nowhere in the records it is coming out that appellant was required to supervise 100% stuffing & examination of the cartoons in the containers. Even if there was some negligence on the part of the appellant the same has been taken c .....

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r as issue at Para-4 (iii) above is concerned, it is observed from the language of Sec 113 of the Customs Act 1962 and the case records that appellant was not required to make any entry/declaration in the shipping bill. Once he is not required to make any entry/declaration in the shipping bill then appellant cannot be visited with penalty under Sec 114 of the Customs Act 1962. This view is fortified by the case law CCE, New Delhi Vs Hargovind Export (Supra) when following was observed by CESTAT .....

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the impugned Order, after examining the evidences brought on record and referring to various statements came to the conclusion that the entire conduct of these Respondents would throw a serious doubt about discharging their duty properly but it is not sufficient to penalise them under Section 114 of the Customs Act. The Commissioner has given his findings that there is no evidence on record to show that any act or omission on the part of the Respondents has rendered the goods liable to confisca .....

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gation or proof of consideration having been demanded by the Respondents or paid or supposed to be paid by the exporter. We also observe that this aspect has also been mentioned in the impugned order. The exporter, Shri Kuldeep Singh, has clearly denied knowing any of the Respondents personally. In his statement, he has only mentioned that one Shri Akhilesh Kala knew the Assistant Collector. But Shri Akhilesh Kala has not been traced out during investigation nor he has participated in the adjudi .....

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