AI Drafter - (New and Powerful) 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
2019 (5) TMI 1035
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 2007, dated 14.08.2007 received by the appellant on 20.09.2007. 2.The above appeal has been admitted, vide order dated 17.07.2009, on the following substantial questions of law:- "(i) Whether the CESTAT has been vested with the discretion to waive the imposition of fine and penalty under mandatory provisions of Section 112(a) and 125 of Customs Act in a case of misdeclaration and misclassification of goods especially when it has upheld that duty liability of the first respondent on such misdeclaration/misclassification? (ii) Whether the Tribunal is correct in holding that imposition of find and penalty is not justified where the goods are liable for confiscation under Section 111(d) of Customs act, 1962?" 3.The Reve....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed as a condition precedent for levying a personal penalty under Section 112(a) of the Act, as the theory contemplated thereunder is a civil obligation. Reliance was also placed on the decision of the Division Bench of this Court in the case of Commr. of Cus. (Imports), Chennai, vs. Nithi Tools (P) Ltd. reported in 2014 (306) ELT 228 (Madras). 6.Mrs.P.Jayalakshmi, learned counsel appearing for the respondent submitted that the levy of redemption fine is wholly without jurisdiction, since no such proposal was made when the Tribunal in its earlier order, dated 14.12.2000, remanded the matter for de nova consideration in the case of Wipro Computers Ltd. vs. Commissioner of Customs, Chennai reported in 2001 (135) ELT 450 (Tri-Chennai). There....
X X X X Extracts X X X X
X X X X Extracts X X X X
....paid, no order of confiscation is possible. In this regard, the learned counsel referred to the decision of the Division Bench of this Court in the case of Commissioner of Customs, Tuticorin vs. Kamalabhai reported in 2015 (324) ELT 70 (Madras). 9.In our considered view, this question will not arise in the instant case because, the Department themselves reconciled to the fact that no redemption fine should have been imposed at the first instance and there was no such proposal when the adjudication took place at the option of the respondent/importer. Thus, when the proceedings ultimately came before the Tribunal and the Tribunal by order dated 14.12.2000, allowed the assessee's appeal and remanded the matter for fresh consideration, ob....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... could not have availed the benefit of DEPB Scheme. 13.There could be no quarrel as to under what circumstances, Section 112(a) of the Act would stand attracted, but we are required to see as to how the Courts have interpreted the said provision. We are guided by the decision of the Hon'ble Supreme court in Akbar Badruddin Jiwani (supra) wherein, it was held that the appellant therein has acted on the basis of bona fide belief that the goods were importable under OGL and therefore, the appellant deserves lenient treatment. In the said case, the Hon'ble Supreme Court referred to the decisions in the case of Merck Spares v. Collector of Central Excise & Customs, New Delhi reported in 1983 ELT 1261; Shama Engine Valves Ltd. Bombay vs. C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cally dealt with. As pointed out earlier, Mr.V.Sundareswaran, is right in contending that Section 112(a) of the Act which deals with penalty for improper importation of goods would stand attracted. But, however, the moot question is merely because the provision would stand attracted, whether in all cases penalty is imposable, that too, maximum penalty as in the instant case. The answer to the question lies in the decision in Akbar Badruddin Jiwani (supra). The respondent/importer had been contesting the classification issue which they are entitled to contest, since the respondent/importer's specific case is that they have been importing the very same goods for a long period of time and clearing the same under the heading 8542 and all of ....