TMI Blog2022 (11) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... in imposing penalty under Section 112(a) on the respondent. Once he has imposed penalty under Section 112(a), in view of the proviso, penalty under Section 114A cannot be imposed. Appeal filed by the Revenue is dismissed. - Customs Appeal No. 591 of 2012 - A/85925/2022 - Dated:- 20-9-2022 - HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) AND HON BLE DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri Anand Kumar, Additional Commissioner, Authorised Representative, for the Appellant None for the Respondent ORDER PER: SANJIV SRIVASTAVA This appeal has been filed by Revenue against order-in-original No. 74/2012 dated 05.03.2012 passed by the Commissioner of Customs (Exports), Mumbai-II. By the impugned order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determine the duty liability of the Noticee M/s Aiges India Marketing Pvt. Ltd, import duty of Rs. 8,66,16,058.44 (Rupees eight crore sixty six lakh sixteen thousand fifty eight and paise forty four only) under the provisions of section 28(2) and order that the amount of Rs. 8,66,16,058.44 (Rupees eight crore sixty six lakh sixteen thousand fifty eight and paise forty four only) be recovered from the Noticee along with interest at applicable rates under section 28AB of the Customs Act, 1962. 6.6. I further impose a penalty of Rs. 5,00,00,000/- (Rupees five crore only) on M/s Aiges India Marketing Pvt. Ltd., under section 112(a) of the Customs Act, 1962. 6.7 I further impose a penalty of Rs. 1,00,00,000/- (Rupees one crore only) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating Authority refrained from imposing any penalty under section 114(A) and proceeded to impose penalty under section 112(a) of the Customs Act, 1962. 28. It is a well settled principal of law that mere non-mention of statutory provision in the SCN will not vitiate the proceedings as held by the Hon ble Tribunal in the case of Dalmia India Vs. Commissioner 1995 (79) ELT.(120) (Tri); Fortune Impex Vs Commissioner-2001 (138) EL T. (138) 556 (Tri. Kol) Jagson International Lt. Vs. Commissioner of Customs, Chennai 2006 (199) E.L.T. 553 (Tri. Delhi): Kusum Alloys Ltd. Vs. Commissioner of Customs, Banglore -2010 (254) E. L. T. 357 (Tri. Bang): Deccan Cements Ltd. Vs Commissioner of C. Ex., Hyderabad -2002 (147) ELT 428 (Tri. Chennai) and J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of Section 112 are general, the order of the adjudicating authority that, no penalty is levied on the importer firm under section 114A as he has already penalized under section 112(a), is not legal and proper because it is a well settled law that, Generalia specialibus non derogant , i.e., general provisions will not abrogate special provisions. 5.2 Section 114A of the Customs Act, 1962 is reproduced below:- Section 114A - Penalty for short-levy or non-levy of duty in certain cases. - Where the duty has not been levied or has been short-levied or the interest has not been charged or paid or has [xxx] been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful misstatement or s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty under the first proviso shall be available if the amount of the duty or the interest so increased, along with the interest payable thereon under section 28AA, and twenty-five per cent of the consequential increase in penalty have also been paid within thirty days of the communication of the order by which such increase in the duty or interest takes effect : Provided also that where any penalty has been levied under this section, no penalty shall be levied under section 112 or section 114. As per the proviso, penalty could not be imposed under this section if the same has been imposed under Section 112(a). 5.3 Since in his order, the Commissioner has held the goods liable for confiscation under Section 111(d) and (o) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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