2019 (8) TMI 1144

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....involved in both the appeals is identical and there is a common impugned order, both the appeals are being disposed by this common order. 2.1. Briefly the facts of the present case are that the appellants imported various types of video games and sought clearance vide three Bills of Entry Nos.3385 dt. 26/09/2001 and No.3387 dt. 26/09/2001 with a declared value of Rs. 71,991/- and Rs. 1,81,390/- CIF (by M/s. HM Trade and Expositions) & Bill of Entry No.3485 dt. 05/10/2011 with a value of Rs. 2,80,525/- by M/s.H.M. Leisures, respectively. As there was no mention in the Bills of Entry about the nature of the goods i.e. new or old, 100% examination was conducted and the goods were seized on 02/01/2002 alleging under valuation. The matter was....

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....hority. 2.2. After the remand, the lower authority held that the appellant has mis-declared the description of the goods by not declaring the nature of the goods i.e. either old or new and consequently invoked Section 111(m) and confiscated the said goods and also imposed penalty under Section 112 of the Customs Act. The goods were permitted to be released under Section 125 of the Customs Act, 1962. Aggrieved by the said order, passed on remand, the appellant filed appeals before the Commissioner(Appeals) and the Commissioner(Appeals) rejected the same. Hence the present appeals. 3. Heard both sides and perused the records. 4.1. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the sam....

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....d that once the original authority has passed the order and imposed fine and penalty, subsequently the same authority cannot alter the amount of fine as well as penalty since the said officer becomes functus officio once the order is passed. He further submitted that on this ground alone, the original order has to be set aside. In support of his submission, he relied upon the following decisions:- i. Flash Forge (P) Ltd. Vs. CC&CE(A), Visakhapatnam [2009(233) ELT 126 (Tri. Bang.)] ii. CCE, Kolkata-VII Vs. Bharat Lub Industries (P) Ltd. [2004(173) ELT 138 (Tri. Kolkata)] 4.3. Learned counsel argued that though he has a very good case on merits and has raised number of grounds in the grounds of appeal but this case will g....

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..../03/2008 is not appropriate under law in view of the Board's Circular No.502/68/99-CX dt. 16/12/1999. Further we find that the Division Bench of this Tribunal in the case of Flash Forge (P) Ltd. cited supra has held in para 7 as under:- 7. On a careful consideration of the issue, we find that the facility of deferred payment has been withdrawn without issuing show cause notice. This is in violation of the principles of natural justice. The Punjab & Haryana (cited supra) in the case of Krishna Engineering Works Ltd. has held that the facility and payment of duty on fortnightly basis should be forfeited only after affording opportunity of hearing to the petitioners. Moreover, the Original Authority has issued a corrigendum enhancing ....