TMI Blog2018 (3) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... tical facts they have allowed the appeal preferred by another appellant for using the same script - Counsel for the respondent is correct when he asserts that the penalty imposed in the case of M/s. Singh World is more than ₹ 2.0 lakhs, therefore, their appeal could not have been dismissed under the proviso. The argument fails to notice and give due regard to the difference between existence of discretion and wrong and erroneous exercise of power conferred i.e. exercise of discretion. Tribunal has not correctly exercised the discretion under the proviso (iii) to sub-section 1 of Section 129A of the Act - matter is remanded to the Tribunal to hear the appeal on merits - appeal allowed by way of remand. - CUSS.AA 56/2017 - - - Dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho in turn transferred the same to M/s Laxmi Logistics Pvt. Ltd., Kolkata and thereafter, to M/s JSR Overseas, Bihar who in turn sold the same to M/s JMD lmpex Inc and who thereafter, transferred the license to the appellant and M/s Singh World by way of issue of release advise. The appellant had obtained the Release advise for ₹ 65,407/-, whereas the M/s Singh World obtained it for ₹ 2, 17,122/-. 6. The Bills of Entry filed by the appellant and M/s Singh World along with the other import documents, subject licence and transfer letter were presented for perusal and scrutiny before the authorities and were passed out of charge by the proper officer after due scrutiny and no discrepancy was pointed out at that time and even sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not exceed rupees two lakhs. In the instant case, the penalty is below the prescribed limit. Hence, we decline to hear the appeal. Thus, the Tribunal has refused to exercise discretion to admit the appeal, as the subject matter of the appeal i.e., quatum of penalty imposed did not exceed ₹ 2.0 lakhs. Reference was made to proviso to Section 129A. 11. Section 129A of the Act reads as under:- 129A. Appeals to the Appellate Tribunal.- (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order (a) a decision or order passed by the Principal Commissioner of Customs or Commissioner of Customs as an adjudicating authority; (b) an order passed by the Commissioner (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (iii) the amount of fine or penalty determined by such order, does not exceed two lakh rupees. (emphasis supplied) 12. It is not disputed that the respondent / revenue accepts that the appellant had right to file an appeal challenging the order of the first appellate authority confirming penalty imposed by the Order in Original before the Appellate Tribunal under Section 129A (1) of the Act. Proviso (iii) to sub-section 1 of Section 129A gives discretion to Tribunal to admit or not to admit an ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... script used by M/s. Singh World and the appellant was the same. No distinction or difference of facts etc. is recorded and noticed in the impugned order. Thus, the appellant, who had to pay less penalty would be penalized and suffer, while M/s. Singh World, who had to pay higher penalty would get benefit as their appeal was heard and decided on merits. 14. Counsel for the respondent is correct when he asserts that the penalty imposed in the case of M/s. Singh World is more than ₹ 2.0 lakhs, therefore, their appeal could not have been dismissed under the proviso. The argument fails to notice and give due regard to the difference between existence of discretion and wrong and erroneous exercise of power conferred i.e. exercise of disc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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