TaxTMI 
TaxTMI 
2016 (5) TMI 83
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the Customs Act, 1962, such challenge has been expressly abandoned at this stage on the ground that the petitions can be pursued otherwise since the order impugned is without jurisdiction. 3. By the common order of November 24, 2015, the Commissioner of Customs (Preventive) has imposed "exemplary penalty" of Rs. 10,07,00,000/- in case of either petitioner. The petitioner in the first matter has been found to be "the mastermind and king pin of the instant smuggling operation" and the petitioner in the second matter has been found to be "the principal accomplice of" the other petitioner. 4. The penalty in either case has been imposed under Section 112 of the said Act for improper importation of gold bars of foreign origin. The penalty....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d on the belief that they were illegally imported into the country from Bangladesh and were liable for confiscation under Section 111 of the Act. All nine persons, from whose possession the gold was recovered, were examined under Section 108 of the Act and, on the basis of their statements, it was perceived that the two key players were the two petitioners herein. The petitioner in the first matter was also examined but the petitioner in the second matter did not respond to the several summons issued to him. 8. The facts are not much in dispute and the findings rendered in course of the order of adjudication as to the culpability of these petitioners have not been questioned. The only ground urged is that the penalty imposed on either pe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ot exceeding the value of the goods or five thousand rupees, whichever is the greater; (ii) in the case of dutiable goods, other than prohibited goods, subject to the provisions of section 114A, to a penalty not exceeding ten per cent. of the duty sought to be evaded or five thousand rupees, whichever is higher: Provided that where such duty as determined under sub-section (8) of section 28 and the interest payable thereon under section 28AA is paid within thirty days from the date of communication of the order of the proper officer determining such duty, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent. of the penalty so determined; (iii) in the case of goods in respe....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... manner of its import or smuggling into the country. They seek to make a distinction between the illegal import of any goods within the meaning of the definition in Section 11-A(a) of the Act and the definition of "prohibited goods" under Section 2(33) thereof. The petitioners next refer to "dutiable goods" as recognised in Section 12 of the Act and assert that it is one thing to say that the goods were illegally brought into the country by not following the proper procedure for import thereof and, thereby, evading the payment of duty thereon; but quite another to suggest that any illegal import of goods otherwise than through the proper channel and without paying the due duty thereon would amount to an act in derogation of any prohibition ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o a circular issued by the Central Board of Excise and Customs that permits only nominated banks to import gold and prohibits the import of certain items of gold. 13. The Union has relied on the judgments reported at (2003) 6 SCC 161 (Om Prakash Bhatia v. Commissioner of Customs) and (2011) 2 SCC 74 (Commissioner of Customs (Preventive) v. M. Ambalal and Company) for the proposition that smuggled goods cannot be regarded as dutiable goods. In the first matter the Supreme Court considered the meaning of the expression "contrary to any prohibition imposed by or under this Act or any other law for the time being in force" appearing in Section 113(d) and the expression "subject to any prohibition under this Act or any other law" in the defin....