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2019 (5) TMI 1035

ons of Section 112(a) and 125 of Customs Act in a case of misdeclaration and misclassification of goods especially when it has upheld that duty liability of the first respondent on such misdeclaration/misclassification? HELD THAT:- It is not in dispute that the order dated 17.04.2003 was passed by the Commissioner as a de nova proceedings pursuant to an order passed by the Tribunal remanding the matter for fresh consideration, vide order dated 14.12.2000. Therefore, it has to be seen as to whether there was any proposal at the first instance for levy of redemption fine. Admittedly, there was no such proposal for levy of redemption fine, as in the understanding of the original authority, the goods were not liable for confiscation, since the .....

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w:- (i) Whether the CESTAT has been vested with the discretion to waive the imposition of fine and penalty under mandatory provisions of Section 112(a) and 125 of Customs Act in a case of misdeclaration and misclassification of goods especially when it has upheld that duty liability of the first respondent on such misdeclaration/misclassification? (ii) Whether the Tribunal is correct in holding that imposition of find and penalty is not justified where the goods are liable for confiscation under Section 111(d) of Customs act, 1962? 3.The Revenue is aggrieved by the order passed by the Tribunal by which, the Tribunal deleted the levy of redemption fine and penalty imposed on the respondent by the Commissioner of Customs (Air), Chennai, vide .....

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Bench of this Court in the case of Commr. of Cus. (Imports), Chennai, vs. Nithi Tools (P) Ltd. reported in 2014 (306) ELT 228 (Madras). 6.Mrs.P.Jayalakshmi, learned counsel appearing for the respondent submitted that the levy of redemption fine is wholly without jurisdiction, since no such proposal was made when the Tribunal in its earlier order, dated 14.12.2000, remanded the matter for de nova consideration in the case of Wipro Computers Ltd. vs. Commissioner of Customs, Chennai reported in 2001 (135) ELT 450 (Tri-Chennai). Therefore, it is submitted that the levy of redemption fine is without jurisdiction and therefore, rightly set aside by the Tribunal. 7.So far as the levy of penalty under Section 112(a) of the Act is concerned, it is .....

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in 2015 (324) ELT 70 (Madras). 9.In our considered view, this question will not arise in the instant case because, the Department themselves reconciled to the fact that no redemption fine should have been imposed at the first instance and there was no such proposal when the adjudication took place at the option of the respondent/importer. Thus, when the proceedings ultimately came before the Tribunal and the Tribunal by order dated 14.12.2000, allowed the assessee s appeal and remanded the matter for fresh consideration, obviously, the adjudicating authority cannot start from the inception as if it is a fresh proceedings. Therefore, in our considered view, on facts, the decision in the case of Comex Co. (supra) cannot be made applicable to .....

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aid provision. We are guided by the decision of the Hon ble Supreme court in Akbar Badruddin Jiwani (supra) wherein, it was held that the appellant therein has acted on the basis of bona fide belief that the goods were importable under OGL and therefore, the appellant deserves lenient treatment. In the said case, the Hon'ble Supreme Court referred to the decisions in the case of Merck Spares v. Collector of Central Excise & Customs, New Delhi reported in 1983 ELT 1261; Shama Engine Valves Ltd. Bombay vs. Collector of Customs, Bombay reported in 1984 (18) ELT 533; and Madhusudan Gordhandas & Co. vs. Collector of Customs, Bombay reported in 1987 (29) ELT 904 wherein it was held that, in imposing penalty, requisite mens rea has to .....

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merely because the provision would stand attracted, whether in all cases penalty is imposable, that too, maximum penalty as in the instant case. The answer to the question lies in the decision in Akbar Badruddin Jiwani (supra). The respondent/importer had been contesting the classification issue which they are entitled to contest, since the respondent/importer s specific case is that they have been importing the very same goods for a long period of time and clearing the same under the heading 8542 and all of a sudden, the Department took a stand that the import is classifiable under heading 8473.70. Thus, ultimately, when the issue was decided against the respondent/importer, they accepted the classification and paid duty and interest. Ther .....

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