2023 (5) TMI 50

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....d claim for refund of Rs. 2,90,212/- which was rejected vide Order-in-Original No. KDL/75/FAK/AC/Ref/MPSEZ/08-09 dated 11.11.2008 by Assistant Commissioner (Refund), Mundra who held that the goods CTH 72163200 is eligible for concessional rate of duty @5% as per Sr. 190B of Notfn No.21/2002-Cus but since the appellant did not challenge the assessment order which has become final the Refund is not admissible. 3. Against rejection of refund claim; the appellant filed an appeal before Commissioner of Customs(Appeal), Kandla who vide Order- in-Appeal No. 421/2009/Cus/Commr(A)/KDL dated 17.9.2009 rejected the appeal holding that the assessment of subject bill of entry being unchallenged has attained finality and the assessment cannot be reope....

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....t from Rs 9,25,427/- under Section 114 A of Customs Act, 1962 to Rs. 4 Lakh under Section 112(a) of the Customs Act, 1962. 7. Aggrieved by the aforesaid order, the appellant has filed the present appeal, inter alia, taking ground that imposition of penalty of Rs. 4 Lakhs under Section 112(a) is not sustainable as they were never afforded opportunity to rebut it. In the Order-In-Appeal, the Commissioner levied the same under Section 112(a) as it could not find any mens rea, as was required as per the Order-In-Original which imposed penalty under section 114 A. There was no show cause notice in the proceeding. The party has also contested imposition of fine of Rs. 12 Lakhs on the ground that market inquiry to check whether the redemption f....

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....made by the appellant, on the point of action in personam, that the Commissioner should not have imposed penalty under Section 112(a),while giving finding of the non- imposition of penalty under Section 114A, due to lack of mens rea. We find that such a course of action could have only been done by affording full opportunity to the appellant, including in relation to justification or otherwise of quantum of penalty, which as per records does not appear to be the case. Even under section 128 A(3) cited in the impugned order, Commissioner (Appeals) while deviating from show cause notice/Order-In-Original is required to do natural justice based inquiry before doing modification of this nature. Imposition of penalty u/s 112(a) therefore does no....