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2019 (11) TMI 452

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..... dated 06.10.2005 issued by the Department of Health was not in the knowledge of the appellant as well as the Customs officials and no objection was raised against the appellant. Subsequently, after the expiry of six years, a SCN dated 06.08.2011 was issued proposing confiscation of the goods imported under 111 Bills of Entry mentioned therein and also proposing penalty under Section 112 and 117 of the Act - the Original Authority after considering the submissions of the appellant has observed that there was no mis-declaration on the part of the appellant while filing the Bill of Entry and that finding has not been disturbed even by the Commissioner (A). Extended period of Limitation - HELD THAT:- The Department issued another SCN No.21/2010 .....

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..... ters . The appellant has been importing the said item from 23.11.2005 to 17.03.2011 and has been filing Bill of Entry declaring the entire details of the goods imported and Customs used to clear them after examination on payment of Customs Duty and other lawful charges and after satisfying themselves that the appellant has complied with all statutory formalities/procedures under Customs Act. Further, it was provided under Rule 43A of Drugs and Cosmetics Rules, 1945 that drug should not be imported by air to India through Trivandrum. However, the appellant has imported and cleared only Surgical Instruments, Parts & Accessories including Catheter and not any drugs . However, on 06.10.2005, Department of Health, Ministry of Health and Fami .....

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..... of penalty. Thereafter, the Commissioner (A) enhance the penalty from ₹ 5,55,000/- to ₹ 15,00,000/-. 3. Heard both the parties and perused the records of the case. 4. Learned Counsel for the appellant submitted that the impugned order is not sustainable in law as the same is contrary to the facts without appreciating the facts in right perspective. He further submitted that originally there were two allegations leveled against the appellant in the SCN, viz. that the appellant had imported Catheter through Trivandrum Airport which is not a designated Airport to import Drugs under the Drugs and Cosmetics Rules, 1945 and secondly the appellant had mis-declared in the Bill of Entry the description of imported goods. He further subm .....

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..... missioner (A). He also submitted that another SCN No.21/2010 dated 23.07.2010 was issued for recovery of short payment of duty and in that Notice also, there was no mention of the mis-declaration and that the said item cannot be imported through Trivandrum Airport. He also submitted that substantially, the demand is barred by limitation because the SCN was issued on 16.08.2011 for the imports affected from 23.11.2005 to 17.03.2011 and no suppression of fact has been proved against the appellant. He further submitted that the imposition of penalty by the Original Authority and enhancing the same is not tenable in law because the penalty can only be imposed when goods are liable for confiscation and the same are available too. He also submitt .....

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..... dated 23.07.2010 demanding short payment of duty on certain items but in the said SCN also, no allegation was made that the appellant is not entitled to import through Trivandrum Airport. Once the Customs authorities has come to the conclusion that there is no mis-declaration and there is no suppression of facts by the appellant in filing the Bill of Entry which was accepted by the Department, then invoking the extended period of limitation is not justified because there was no intention to evade payment of duty. Further, I find that the imposition of penalty of ₹ 5,55,000/- on the appellant by the Original Authority was not justified in view of the fact that there was no mis-declaration on the part of the appellant during the last si .....

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