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2018 (3) TMI 935

cise and Service Tax Appellate Tribunal was right in exercising discretion and in refusing to admit the appeal preferred by the appellant in exercise of discretion vested under proviso (iii) to sub-section (1) of Section 129A of Customs Act, 1952? - Held that: - Existence of power would not be a good justification and reason for the Tribunal not to exercise discretion in favor of the appellant when on similar and identical 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 argum .....

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ra accessories under bill of lading No.5766852 dated 18th January, 2012. M/s. Singh World had also paid customs duty of ₹ 2,17,122.30/- on debiting of the same transferable script/ licence No. 2910016089 dated 10th January, 2012. 5. Aforesaid script/ license as per the appellant was originally issued by the DGFT, Moradabad to M/s. lsha Color, Moradabad for ₹ 5,77,698/- who 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 S .....

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114A and 114(AA) of the Act. By the impugned order dated 17th March, 2015 the appeal has been dismissed by the Appellate Tribunal recording as under: 4. After hearing both sides and on perusal of record, it appears that Section 129A proviso (iii) of the Customs Act, 1962 provides that appeal may not be heard by the Tribunal where the amount of fine or penalty does 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 .....

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use to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where - (i) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 125; or (ii) in any disputed case, other than a case where the 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 .....

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erred to the concept of discretion and exercise of discretion as we find that the appeal preferred by M/s. Singh World was also listed before the Tribunal on the same date and was allowed vide order dated 17th March, 2017. The penalty imposed on M/s. Singh World was quashed and cancelled though the 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 .....

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