TMI Blog2018 (3) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 5 lakhs. The appellant has not made out a case for interference and substantial question of law raised is answered against the assessee - appeal dismissed. - Civil Miscellaneous Appeal No. 2808 of 2008 - - - Dated:- 12-2-2018 - S. Manikumar And V. Bhavani Subbaroyan, JJ. For the Appellant : Mr. S. Venkatachalam For the Respondents : Mr. S. Rajasekar ORDER ( Order of the Court was made by S. Manikumar, J ) Civil Miscellaneous Appeal is filed against the order made in final order No.112/2008, on the file of the CESTAT, Madras, dated 18/2/2008, on the following substantial questions of law:- 1. Whether the first respondent is correct in observing that the payment made by the appellants was not under pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use notice dated 6/5/1998 to the assessee by invoking the extended period of limitation on the ground of alleged suppression of facts. By the time, differential duty had been paid by the manufacturer during the course of investigation, on 13/8/1993, a fact noted in the show cause notice itself. 3. M/s. Premier Instruments Controls Ltd., contested the demand. While adjudicating of the dispute, Commissioner of Customs appropriated the aforesaid payment towards the demand of differential duty under the proviso to Section 28 (1) of the Customs Act, 1962, imposed a penalty of ₹ 10 lakhs on M/s. Pricol under Section 112 (a) of the Act, and imposed a penalty of ₹ 1.00 lakh on their CHA viz., M/s. Visa Exim Corporation. In appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice. Also we request that out of ₹ 25 lakhs paid as pre deposit by us after deducting ₹ 12,06,874/- and ₹ 18,804/- towards duty for Inserts for Gear and Drill Head, the balance amount may be refunded to us. 6. Opposing the prayer sought for, Mr.S.Rajasekar, learned counsel for the revenue submitted that when mis-declaration of value had been conceded, applicability of Section 111 of the Customs Act, is automatically attracted, for confiscation and consequently, Section 112 of the Customs Act is also attracted for imposition of penalty. He further submitted that though the Tribunal went against the revenue, on the issue of extended period of limitation, when mis-declaration of value had been admitted, imposition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a penalty not exceeding the value of the goods or five thousand rupees, whichever is the greater; (ii). in the case of dutiable goods, other than prohibited goods, subject to the provisions of Section 114 - A, to a penalty not exceeding ten per cent of the duty sought to be evaded or five thousand rupees, whichever is higher: Provided that where such duty as determined under sub-Section (8) of the Section 28 and the interest payable thereon under Section 28 AA is paid within thirty days from the date of communication of the order of the proper officer determining such duty, the amount of penalty liable to be paid by such person under this section shall be twenty five per cent of the penalty so determined. (iii). in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Duty liability was conceded at the stage of investigations, which means, the allegation of misdeclaration of value stands conceded. If that be so, Section 111 (m) of the Customs Act, gets attracted for confiscation of the goods and consequently Section 112 of the Act gets attracted for penalty on the importer. Hence M/s. PRICOL cannot resist the penalty imposed on them. Contextually, we may observe that there is no period of limitation for confiscation related penalties like the one imposed under Section 112 of the Customs Act. However, we do not think that learned Commissioner ought to have imposed such a harsh penalty as s.10.00 lakhs on the assessee. In the facts and circumstances of the case, we reduce it to ₹ 5,00,000/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is that they mis-declared certain inserts for gears as plastic injection mould cavities and availed the benefit of Notification No.314/85-Cus. In this case, they have admitted the mis-declaration and evasion of duty to the extent of ₹ 12,06,874/-. 13. Finding of fact recorded by the adjudicating authority, viz., Commissioner of Customs (Pondicherry), 24/9/2000 has been confirmed by CESTAT, Madras. 14. There is a concurrent finding of fact of mis-declaration of the value, and consequently, Section 111 (m) of the Customs Act, gets attracted. Section 112 of the Customs Act which provides for penalty follow. 15. Though CESTAT was empowered to impose a penalty, not exceeding the value of the goods of ₹ 5,000/-, whichev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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