TaxTMI 
TaxTMI 
2016 (4) TMI 440
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....e benefit concessional rate of duty claimed under Notification No.21/2002-Cus - S.No.363-A was denied. (iii) The differential amount of duty of Rs. 3,47,63,531/- was ordered to be recovered from M/s. Escorts along with interest thereon under Section 28AB of the Customs Act, 1962. (iv) Confiscation of the impugned goods - Da Vinci surgical system valued (assessable value ) at Rs. 7,59,02,909/- under Section 111(m) of the Customs Act, 1962 for mis-declaration of the impugned goods was ordered. However an option was given to redeem the same on payment of fine of Rs. 75 lakhs in lieu of confiscation under Section 125 ibid. (v) Penalty of Rs. 3,47,63,531/- on M/s. Escorts Heart Institutes & Research Centre was imposed for mis-declaration of the impugned goods under Section 114A ibid. However, further penalty under Section 112 ibid was not imposed. (vi) Penalty of Rs. 3 lakhs under Section 112(a) ibid was imposed on Shri Bhuvander Kaul, Dy. General Manager (Medical Materials) of M/s. Escorts for his active role in mis-declaration of the description of the impugned goods. (vii) Penalty of Rs. 5 lakhs under Section 112(a) ibid was imposed on M/s. J Mitra & Bros was imposed for its act....
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.... wide insertion of section 18 (3) while in the present case, the Bill of Entry was provisionally assessed on 28.10.2002 and that the interest cannot be demanded upon finalisation even if such finalisation was done after 13.07.2006. It cited several judgements to that effect including the case of C.C.(Prev.) Vs. Goyal Traders [2014 (302) 529 (Gujarat)] and Sterlite Industries India Ltd. Vs. CC- 2008 (223) ELT 633 (Tri.-Chennai). 4. The Ld. advocate for J. Mitra Bros (Appellant No. 2) put forth various contentions to claim that penalty was not imposable upon it but fairly conceded that in similar circumstances in the case of similar imports by Care Foundation, after taking into account similar contentions, the penalty upon it had been upheld by CESTAT which was further upheld by Delhi High Court vide order dated 11.10.2013 except that the Delhi High Court reduced the penalty from 25 to Rs. 5 lakhs. Following the same ratio, the appellant pleaded that the penalty of Rs. 5 lakhs imposed upon it vide impugned order should be reduced to Rs. 1 lakh. 5. Ld. advocate for the CHA (appellant No. 3) strenuously argued that it had no role in the mis-declaration of the impugned goods and had f....
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....ainst M/s. Escorts Heart Institute & Research Centre Limited, Shri Bhuvander Kaul, M/s. J. Mitra & Bros and M/s. Elecon Cargo Agency under section 112a)/114A of the Customs Act, 1962 for their respective active roles in the mis-declaration of the description of the goods in violations of the provisions of the Customs Act, 1962." It is evident from perusal of para 47 of the Show Cause Notice (quoted above) that the show cause notice was for the finalisation of assessment of Bill of Entry dated 28.10.2002 which had been assessed provisionally. The Show Cause Notice does not mention Section 28 of the Customs Act, 1962 even in passing. The Show Cause Notice also does not mention as to under what provisions of law, the interest was sought to be recovered although the impugned order confirms interest under provisions of Section 28AB ibid. Perusal of Section 28 AB ibid as it existed during the relevant period leaves no scope for ambiguity that the interest thereunder is chargeable only when the demand has been confirmed under provisions of section 28 ibid. Even if it is considered that the demand arises out of finalisation of provisional assessment in terms of Section 18 ibid, it has bee....
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.....2014 in Customs Appeal No.9/2013 also upheld the appellant liable to penalty but reduce the same from Rs. 25 lakhs to Rs. 5 lakhs. We are persuaded by the contention of appellant No. 2 that as the facts and circumstances of the present case are similar to those obtaining in the case of M/s. Care Foundation and its role in that case was similar to its role in the case of imports by the appellant No.1, the penalty imposed should be reduced in the same ratio to Rs. 1 lakh. 10. As regards penalty on Mr. Bhuvander Kaul, Dy. General Manager (Medical Materials), it is clearly brought out in the impugned order that he was the one looking after the import of the said equipment and that he was having knowledge of the mis-declaration and was a part of the entire plan to mis-declare the impugned goods. Thus, penalty on him is attracted. But in the given circumstances and having regard to the fact that penalty on M/s. J. Mitra & Bros, (who was also aware of the mis-declaration and was part of the plan to mis-declare the impugned goods) has been reduced by us from Rs. 5 lakhs to Rs. 1 lakh for reasons given in preceding para, we are inclined to follow the same principle in the case of Mr. Bhuv....