TaxTMI 
TaxTMI 
2019 (11) TMI 1337
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....at 'Nil' rate of duty after obtaining a bond/undertaking from the importer that they would comply with the conditions of the Notification. One of the conditions of the Notification is the issuance of Installation certificates by DGHS. In the instant case, the DGHS vide letter dated 06.10.1997 rejected the importer's application for grant of exemption certificate and also cancelled the duty exemption certificate already issued to them. Further investigations by the department revealed that the importer had violated certain other conditions of the notifications also. Accordingly, the demand notice was issued proposing to deny the benefit of notification and demanding the differential duty of Rs. 7,33,306/- along with interest and a penalty was proposed to be imposed on the importer as well as its Director. The demand was confirmed by order-in-original No. 1/1999-Cus dated 30.01.1999 and the imported goods were confiscated with an option to redeem the same on payment redemption fine of Rs. 1,00,000/-. In this order, the Commissioner ordered final assessment of the goods under Section 18(2) of the Customs Act 1962. Against this order, an appeal was filed by the appellant before CESTAT ....
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....enalty under Section 114A need to be set aside. He relies on the judgement of the Hon'ble High Court of Delhi in the case of Diwan Chand Satya Pal Agarwal Imaging Research Centre Vs UOI [2017(345)ELT 182 (Del) para 25 of which reads as follows: "25. The limited issue before this Court concerns the applicability of Section 114A and 28AB of the Act to the imports in question made by the Petitioner. In law there is no denial by the Department that the said two provisions did not exist in the statute at the time of import of the seven equipments by the Petitioner. In other words, the Department is unable to deny that neither Section 114A nor Section 28AB could have been invoked as far as the SCN issued to the Petitioner was concerned." In view of the above, he would submit that the demand of interest under Section 28AB and imposition of penalty under Section 114A need to be set aside as the imports pertain to prior to 28.09.1996 when these provisions were introduced. 4. On the question of demand, learned counsel for the appellant would urge that the demand has been confirmed referring to Section 28 of the Customs Act 1962. In their case the duties were provisionally assessed under ....
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....illed the conditions of exemption notification. In the original order passed by the Commissioner, the demand was confirmed for recovery under Section 28 along with finalisation of assessment under Section 18 of the Customs Act 1962. Only on the plea of the appellant that they had challenged the decision of DGHS before the Hon'ble High Court, the matter was remanded to the lower authority by the CESTAT. In the subsequent order, the lower authority has referred only to Section 28 of the Customs Act 1962. Merely because he referred to Section 28, it does not automatically entitle the appellant to the benefit of exemption notification, the conditions of which they have clearly not fulfilled especially considering that their writ petition before the Hon'ble High Court and SLP before Hon'ble Supreme Court against non-issue of certificate by DGHS have also failed. Section 28 of the Customs Act 1962 clearly refers to recovery of duties not paid short paid etc. Such recovery can be ordered within one year or as the case may five years from the relevant date. In case of provisional assessment, the relevant date is the date of finalisation of assessment. In this case, the assessments were fin....
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....ind that Section 112 of the Customs Act reads as follows:- "112 Penalty for improper importation of goods, etc. -Any person, (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act, or (b) who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111, shall be liable,- (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty [not 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 percent of the duty sought to be evaded or five thousand rupees, whichever is the higher; Provided that where such duty as determined under sub-section (8) of section 28 and the i....