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2019 (8) TMI 720

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..... osed is well below the threshold prescribed therein. Appeal dismissed - decided against Revenue. - Customs Miscellaneous Application No: 86818 of 2018, Customs Appeal No: 405 of 2011, 89634 of 2018 - A/86393-86394/2019 - Dated:- 13-8-2019 - MR C J MATHEW, MEMBER (TECHNICAL) And AJAY SHARMA, MEMBER (JUDICIAL) Shri DD Singh, Assistant Commissioner (AR) for the appellant Shri K Jayachandran, Advocate for the respondents ORDER PER: C J MATHEW These are appeals of Revenue against order-in-original no. 01/2011-Commr dated 12th January 2011 of Commissioner of Customs & Central Excise, Goa which dropped the proposals to impose penalty on the respondents herein while imposing penalty of ₹10,00,000 on the Director of the respondent-company. .....

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..... e been imposed under Section 112(b) of Customs Act,1962 which is applicable to Section 112. Penalty for improper importation of goods, etc.- Any person, - xxxxx (b) who acquires possession of or is in any way concerned in carrying, removing, depositing, 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, shall be liable, 5. According to Learned Counsel, there has been a delay of 2650 days in filing the appeal and that the delay has not been justified in the application for condonation. It is seen from the application that the appeal was filed only against one of the respondent and that the appeal against th .....

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..... favour of noticee no.3, it is also observed that in the Show Cause Notice there is no proposal to impose penalty on noticee no. 3 under section 112(b) of Customs Act, 1962. Only cause of action is discussed in the Show Cause Notice but there is no proposal for action. When the Show Cause Notice does not contain any such proposal, needless to mention that the noticee cannot be penalized. If the noticee is penalized in the absence of any such proposal in the Show Cause Notice it will be beyond the scope of Show Cause Notice. which is inconsistent with the prayer now made for charging the respondent-company with penalty under section 112(b) of Customs Act, 1962. 10. It is also submitted that the company/firm is not liable to penalty under sec .....

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..... bes of India Ltd to the effect that 9. As regards the second issue in reference it can be noticed that the Rule 209A pre-supposes a knowledge as to the liability of the confiscation of the goods which being transported etc. It was argued extensively by the authorized representative for the department that the expression Any person would include any company or association or body of individual, whether incorporated or not. Reliance was also placed on the definition of the word person in Section 3(42) of The General Clauses Act, 1897, for this proposition. Undoubtedly the expression Any person would include a natural and unnatural person i.e. it would include in its ambit any company or corporation or body of individual/s. The moot question i .....

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..... estination point, can the Indian Railways be penalized under the provisions of Rule 209A of the Central Excise Rules, 1944? The resounding answer would be NO as Indian Railways is not having any knowledge that the goods so booked are liable for confiscation. The booking clerk is in knowledge and hence he is liable to be penalized under the said Rule 209A. Accordingly, we find that the conclusion reached by the Tribunal in the case of Indian Roadways Corporation Ltd. (supra) is also correct and does not require any reconsideration. and the penalty having been imposed on the Director of M/s Kamachi Steels Ltd, no penalty will lie on the respondent herein. 13. In the original adjudication proceedings, penalty of ₹5,00,000 was imposed on .....

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