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TMI Blog2018 (12) TMI 1837X X X X Extracts X X X X X X X X Extracts X X X X ..... ed value of the said goods, with intent to evade payment of customs duty; that Mr. Rakesh Nagpal was the proprietor of M/s. Nagpal International and another firm M/s. Health Impex was owned by Mr. Praveen Nagpal, brother of Mr. Rakesh Nagpal; that both the above firms had imported health equipments from China, Taiwan and Korea. Based on intelligence, investigations were initiated against M/s. Health Impex owned by Mr. Praveen Nagpal. In the course of investigation, e-mails of Mr. Praveen Nagpal along with various records were resumed by the officers of DRI. Further investigations were also carried out at various premises belonging to M/s. Nagpal International. During the course of search operation, fitness equipments valued at Rs. 50,96,400 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 28AB of the Customs Act, 1962. (iv) Penalty should not be imposed upon him in terms of Section 112(a) of the Customs Act, 1962 read with Section 114A of the Customs Act, 1962. 1.3 The matter arising out of the above show cause notice, dated 4-6-2010 was adjudicated vide the impugned order dated 4-4-2012 by the Learned Commissioner of Central Excise (Adjudication), New Delhi, in confirming the demands proposed for recovery in the show cause notice. The impugned order at paragraph 48 has held that Mr. Rakesh Nagpal is the main person behind all such manipulations including suppression of value and the beneficiary of the evasion of Customs duty and accordingly, it has been held that Mr. Rakesh Nagpal for his acts of om ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice, it transpires that the Bills of Entry in question were not finalized by the department at the time of initiation of the investigation proceedings and issuance of the notice to the respondent. 4. Insofar as Section 28 ibid is concerned, the proper officer is vested with the power to recover the duties not levied, short levied or short paid, by issuance of show cause [notice] to the person concerned. In this case, since the Bills of Entries were not finalized by the department, it cannot be said that the duty amount has been determined by the proper officer, for which the provisions of Section 28 ibid shall be invoked. In absence of determination of the duty liability, the provisions of Section 114A ibid cannot be inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermination of the duty liability, which was short-paid, non-paid by reason of collusion or any wilful misstatement or suppression of facts etc. 5. In this appeal, Revenue has not assailed the impugned order on the ground that quantum of penalty imposed under Section 112(a) & (b) ibid is not corresponding to the gravity of offence. Rather, prayer has been made that mandatory penalty prescribed under Section 114A ibid should not be at a lesser side. Since, the issue involved in the case relates to confiscation of goods and related contravention of the statutory provisions, Section 114A ibid cannot at all be invoked. Therefore, we are of the considered view that there is no substance in the appeal filed by Revenue. 6. In view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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