TaxTMI 
TaxTMI 
2023 (12) TMI 193
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.... I find that the adjudicating authority has imposed a penalty of rupees 60 (sixty) lakhs which is around ten times the value of the impugned goods. The penalty of this magnitude has not been justified by giving any grounds or reasons. I find that all along the appellants have pleaded that due to the mistake on part of the labourers/ supervisor of the DTA supplier and the appellant-1, goods other than those declared were loaded. I find that in the SCN as well as in the impugned order it has been mentioned/ acknowledged that the mis-declaration of the goods was on account of the mistake of the persons responsible for the packing of the impugned goods. There is nothing to substantiate that the appellant-1 had deliberately mis declared the impugned goods. The allegation that the appellant-1 intentionally and knowingly prepared the shipping bills, invoices, packing list, signed the declarations in respect of the impugned goods is, therefore, not sustainable as no evidence is brought forth to substantiate the same. I therefore find that the penalty of Rupees sixty lakhs imposed on the appellant-1 under Section 114(iii) of the Act is not only unreasonable but also excessive and too harsh.....
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....entive. I find that appellant-2 was only supplier of the impugned goods to the appellant-1 and he only supplied the impugned goods and did not attempt to export the goods. Penalty under Section 114 of the Act is imposable only when a person 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 113 of the Act or abets the doing or omission of such an act. The appellant-2 had only supplied the goods the appellant-1. The appellants have all along stated and have taken the stand that the wrong supply and consequent mis declaration was on account of the mistake of the employees. The appellant-2, under the given facts and circumstances of the case, cannot be alleged to have done or omitted to have done any act or had abetted the doing or omission of any such act which rendered the impugned goods liable to confiscation. The allegation against the appellant-2 are therefore vague and unsubstantiated. In fact, the allegations are contrary to the facts and evidence on record. Nowhere in the SCN or the impugned order has it been brought out that appellant-1 and appellant-2 had any prior understanding to sup....
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....New Delhi for testing. CRCL submitted its report through letter dated 06.10.2017 and confirmed that the samples are grayish metallic article (magnetic), painted on both sides, each containing Iron more than 99% of the weight. 2.2 Show cause notice dated 23.03.2018 was issued to the respondents proposing to reject the declared tariff item of consignment i.e. 74199930 and re-classified under tariff item 73239490. He had declared the value of Rs.4,52,34,578/- and should be re-determined the same to Rs.6,87,124/-. The goods is liable for confiscation and imposed redemption fine in view of confiscation and for imposition of penalty under Section 114 and 114AA of Customs Act, 1962. 2.3 The said show cause notice was adjudicated by the Additional Commissioner ICD-Moradabad by holding as follows:- ORDER (i) I reject the tariff Item of the consignment attempted to be exported vide Shipping Bill No.4001397, 4001398 and 4001399 all dated 19.09.2017 and 4001394, 4001395 and 4001396 all dated 19.09.2017 declared by the Exporter as Handicraft Artware of Brass falling under chapter heading No. "74199930" and re-classify the said export consignment, actually found to be com....
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.... 3.1 We have heard Shri Santosh Kumar learned Authorised Representative appearing for the revenue. The notice for hearing issued to the respondents but none appeared on behalf of the respondents on number of occasions. Accordingly, in terms of Rule 21 of CESTAT Procedure Rules, 1982, both the appeals has been taken up for hearing and consideration after hearing the learned Authorized Representative for the Revenue. 3.2 Learned Authorized Representative for the Revenue reiterates the grounds taken in the appeal memo. 4.1 We have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 The only ground stated in the appeal filed by the revenue for challenging the order of Commissioner (Appeals) in respect of respondent-1 is as follows:- "The Commissioner (Appeals) also finds that it has been mentioned/acknowledged in the SCN as well as in the impugned order that the mis-declaration of the goods was on account of the mistake of the persons responsible for the packing of impugned goods. findings of the Commissioner (Appeals) is not acceptable as it was clearly mentioned in order-in-original that the case was booke....
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....nd not justified as to why he was not running the business in his name. Further, there were no premises available with appellant-2 for doing any business activities. There was no trace of appellant-2 also. These facts clearly guides that there was some understanding between them and they intentionally and knowingly mis-declared the goods for getting the export benefits. Hence, penalty under Section 114(ii) is imposable upon Appellant-2 and therefore, the Commissioner (Appeals) has made a mistake while passing the order. (iv) With regard to penalty of Rs. Fifteen Lakhs upon Appellant-2 under Section 114AA, the Commissioner (Appeals) order is not proper and legal as discussed in para 2 (ii) and (iii) above. 3. The Commissioner (Appeals) has not discussed the departmental view on merits at all but held to be wrong on the ground of party's appeal. In view of the above, the department's appeal deserves to be decided on merits." 4.4 Ultimately, it is contention of revenue that Commissioner (Appeals) has decided the appeal in favour of respondents without discussing departmental views on merits. Form the above reproduced para of Commissioner (Appeals), we find....
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....eard." 4.7 In Raju Sharma [2020 (372) E.L.T. 249 (Del.)] Hon'ble Delhi High Court held as follows: "18. .....The Commissioner (Appeals), while rejecting the appeal of the revenue, correctly noted this legal position, and observed that, as the AC had exercised discretion in favour of allowing redemption of the seized currency, on payment of redemption fine of Rs 50,000/-, no occasion arose to interfere therewith. We are entirely in agreement with the Commissioner (Appeals). Exercise of discretion, by judicial, or quasi-judicial authorities, merits interference only where the exercise is perverse or tainted by patent illegality, or is tainted by oblique motives [Mangalam Organics Ltd. v. UOI - (2017) 7 SCC 221 = 2017 (349) E.L.T. 369 (S.C.)]. No illegality, much less perversity, is discernible in the decision, of the AC, to allow redemption of the seized currency on payment of redemption fine of Rs 50,000/-. The Commissioner (Appeals) rightly refused to interfere with the said decision, and the Revisionary Authority, in an order which reflects total non-application of mind, chose to reverse the said decision." 4.8 In Barnwal Carpet Mfg. Co [2017 (354) E.L.T. 21 (All.)]....