TMI Blog2000 (5) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... gnments reached Mumbai or New Delhi, as the case may be, Bills of Entry were filed. On the basis of the value shown therein duty was paid and goods were accordingly cleared. Subsequently show cause notice was issued on 17-3-1999 alleging undervaluation. As per the show cause notice a sum of Rs. 81,49,643 was claimed as customs duty evaded by mis-declaration and suppression of value of the goods imported. They were also asked to explain why penalty under section 114A should not be levied and why interest on account of delayed payment be not realised invoking the provisions contained in Section 28AB of the Customs Act. 2.Even before the show cause notice was issued, M/s. Nippon Audiotronix Ltd. deposited Rs. 81,49,640 towards the duty lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 114A could not have been imposed in relation to imports which were effected prior to the enactment of that provision, namely, 28-9-1996; (iv) Adjudicating authority was not at all justified in ordering payment of interest in relation to the imports effected prior to 28-9-1996, the date on which section 28AB came into the Statute. 5.We shall proceed to deal with the arguments herein below : Coming to the argument, namely, that there was no mis-declaration of the value of the goods imported, Learned Counsel took us through various documents. Those documents are not convincing enough to show that there was no mis-declaration. This is more so when we go through the admission made by the Managing Director of the company. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bill of Entry being presented by the Importer, assessment has to be made as per Section 17 of the Act of the duty which is leviable. On such assessment, the duty is levied. On payment of the duty so assessed goods are cleared under section 47. When the goods so cleared are found to have been subject to short-levy, procedure contemplated by Section 28 has to be initiated. When duty has not been levied or had been short-levied, competent officer of the Department shall issue notice on the person chargeable with duty or interest requiring him to show cause why he should not pay the amount specified therein. Section 28(1) makes it clear that notice contemplated by that section is to be served on the person chargeable with duty. The person c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h imposes penalty on Shri K.S. Goindi, Managing Director. 10.Third point urged by the Learned Counsel is that Section 114A could not be invoked in relation to imports effected prior to 28-9-1996. Section 114 imposes penalty on the person who is liable to pay duty as determined under section 28(2). Circumstances which warranted an order under section 28(2) should have come into existence subsequent to 28-9-1996 for invoking section 114A. If the situation arose prior to 28-9-1996 the penalty under section 114A cannot be imposed on the importer. Penalty under section 114A can be imposed on persons who created situation warranting action under section 28(2) subsequent to 28-9-1996 only. Article 20 of the Constitution of India specifically st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the Finance (No. 2) Bill, 1996 receives the assent of the President". So, interest in respect of duty which was payable on goods imported subsequent to 28-9-1996 alone could be levied. Interest so calculated will come to Rs. 3,16,242. Learned Departmental Representative appearing in the case accepted this amount as the correct amount of interest payable by the appellant. Therefore order of the Adjudicating Authority on interest is modified to this sum, i.e. Rs. 3,16,242. 12.One other contention raised by the Learned Counsel representing the appellant was that no penalty or interest is payable by the appellant because the entire duty which was found payable was deposited by the Company nearly 1 ½ years prior to the issue of the show c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned Counsel that the Department was not justified in invoking the provisions contained in Section 28 of the Act. 13.On the basis of earlier decisions rendered by this Tribunal, yet another submission was made by the Learned Counsel representing the appellant that even invoking Section 114A, the penalty imposable need not be equal to the duty not levied or short-levied. We are not disputing this proposition of law; but it all depends on the facts and circumstances of each case. On the facts of this case, the Company cannot claim any such leniency from Tribunal. They tried to evade substantial amount of revenue by misdeclaring value. So we do not find any justification in reducing the quantum of penalty. 14.Appeals are disposed of as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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