TMI Blog2018 (10) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... visions are in a different spheres of operation. The learned Commissioner has erred in putting both the subsections together while imposing penalty. It was incumbent on the part of the adjudicating authority to clearly satisfy the offence of each of the persons involved and then to apply the penalty provisions as the commissions or omissions by the respective persons may invite - the matter has to go back to the original authority for appreciating the facts vis-à-vis penal provisions and to pass a suitable order. Imposition of penalty on truck owners/drivers - Held that:- As the case itself is remanded back for a fresh consideration on the issue of imposition of penalties, it would not be proper at this juncture to pass a judgment on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been issued. Statements of different persons involved were recorded and a show-cause notice was issued proposing: (i) Confiscation of goods imported; (ii) Confiscate the two lorries bearing registration No. KL 10 D216 owned by Shri Kunhi Mohammed and KL 10 E8937 driven by Shri M. E. Dharmarajan; (iii) Imposing penalty on Mohammad Abdul Nasar; Kunhi Mohammed, Shri P. V. Vijaykumar; Shri R. Sreekumar, Shri Philip Varghese, Shri T. Mohammed, Shri M.E. Dharmarajan, Shri Tissan J. Thachankary of M/s. Asian Terminals; Shri Mathew Philip and Smt. Ajitha Sajith. 2. The Commissioner of Customs vide Order-in-Original has confiscated the impugned goods vide Order No.40/2006 dated 12.12.2006, however, (i) confiscated the goods and g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e penalties imposed by the Commissioner (A). The learned counsel stated that the learned Commissioner has erred in imposing penalties under Section 112 (a) and (b) of the Customs Act, 1962. He stated that the provisions under Section 112(a) and 112(b) are in a different domain. Whereas Section 112(a) talks of commissions and omission before the import of the goods and Section 112(b) talks the manner of dealing with the goods after importation, this has been clearly enunciated by this very Bench in the case V. Lakshmipathy vs. Commissioner of Customs, Cochin: 2003 (153) ELT 640 (Tri.-Bang.), wherein it has observed in para 2(c) as under: The imposition of a penalty under Section 112(a) of the Customs Act presupposes an existence of an e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 112(a) and (b) of the Customs Act, 1962, it is not proper on his part to impose penalty on all the persons under both Sections. It is expected that the adjudicating authority comes to a conclusion while appreciating the facts of the case and the provisions of law in a proper perspective. He requested that for this precise reason, the matter may be remanded back to the adjudicating authority. 3. The learned DR for the Department has reiterated the findings of the Order-in-original and has submitted that the conclusions were drawn by the Commissioner after going through the facts of the case and the statements of the concerned persons recorded during investigations. The statements were not retracted before the issue of show-cause no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 M/s. Shama Fireworks Industries The High Court held that the statement of partner recorded which was not retraced, rejected the plea of assessee that they had no capacity to manufacture so much of quantity, considering clandestine removal of goods and the way the assessee were operating. 4 M/s. Hillari Computer Exports (P) Ltd.: 2006 (199) ELT 636 (Tri.Bang.) The Tribunal held that the voluntary statement of the Managing Director corroborated by other two directors and two senior officials in his own handwriting could not have been the imagination of the departmental officers. 5 M/s. Mahindra Chandra Dey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111. A reading of the provisions indicates very clearly that they are under different domains. Whereas subsection (a) envisages an action of commission or omission in relation to the goods which would render the goods liable for confiscation under Section 112 of Customs Act, 1962; Subsection of (b) of Section 112 envisages certain act concerning the goods, therefore, it has to be understood that both the provisions are in a different spheres of operation as held by the Tribunal in the case of V. Lakshimpathy cited supra. Both the situations are cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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