TMI Blog2019 (7) TMI 1305X X X X Extracts X X X X X X X X Extracts X X X X ..... report. The natural corollary is that the first report becomes non-est. Hence, I do not find any basis for imposition nor has the Revenue brought out any raison detre for imposition of the impugned penalty on record since the very basis i.e., the alleged fake report is itself not there on board anymore. The Adjudicating Authority has been injudicious and peremptory in imposition of the impugned penalty under Section 114AA ibid, since, unless it is proved that the person to be penalized has knowingly or intentionally implicated himself in use of false and incorrect materials, there can be no justification for penalty under this Section. This requirement of factual finding itself is not there and nor has it been answered satisfactorily eit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under Fake PSC (Fake Phytosanitary Certificate). 2.3 The Adjudicating Authority, based on the above communication by the PQ Officer, assessee s request for waiver of Show Cause Notice and personal hearing, took up the assessee s case for adjudication and vide Order-in-Original dated 27.06.2018 ordered confiscation of the goods imported under Section 111 (d) of the Customs Act, 1962 with an option of redemption under Section 125 ibid and also imposed penalties under Sections 112 and 114AA ibid. 2.4.1 The appellant carried the matter in appeal before the First Appellate Authority i.e., the Commissioner of G.S.T. and Central Excise (Appeals), Tiruchirapalli. During the pendency of its first appeal, the appellant f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the PQ clearance was given by relaxing the norms, but however, imposed a penalty of ₹ 2,00,000/-, the payment of which was made condition for clearance for home consumption. 3.2 The appellant preferred appeal against the levy of penalty under Section 114AA ibid before the First Appellate Authority and the First Appellate Authority vide impugned Order-in-Appeal No. 39/2019-TTN (CUS) dated 22.03.2019, however, upheld the levy of penalty thereby rejecting the claim of the appellant. The appellant is therefore before this forum. 4. When the matter was taken up for hearing, Shri. T. Ramesh, Ld. Advocate, appeared for the assessee and Shri. B. Balamurugan, Ld. AR, appeared for the Revenue. 5.1 The ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty for use of false and incorrect material. If a person knowingly or intentionally makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document which is false or incorrect in any material particular, in the transaction of any business for the purposes of this Act, shall be liable to a penalty not exceeding five times the value of goods.] 8.2 The essence of Section 114AA is that the person knowingly and intentionally makes, signs or uses . . is as good as suppression or playing fraud and hence, the burden of proof is heavily cast on the Revenue to establish the mala fides. The allegation of Fake PSC (which was later on set right) ipso facto does not lead to the liabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate Authority s direction, the Adjudicating Authority acts upon the second PSC and grants substantial relief, but for penalty under Section 114AA. The question is, therefore, when admittedly no fault is found by the authority, can its report be still held to be available, if not for anything, but for levying penalty alone under Section 114AA ibid? 9.2 The impugned penalty is for an express default and when the report itself has a clean slate, there cannot be any penalty, at least with respect to that report. This is also for the reason that the Commissioner (Appeals) has, in her first order, set aside the entire issue for passing fresh adjudication order in the light of the second report. The natural corollary is that the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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