TaxTMI 
TaxTMI 
2026 (2) TMI 548
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....s. The penalty imposed upon the Custom Broker under Section 112(a)(i) of the Customs Act, 1962 is out of purview of this order. The impugned order stands modified to the above extent. The appeal is disposed of accordingly. 2.1 Appellant, having IEC-589050796, has filed Bills of Entry no. 5552427 dated 23.09.2021 and 5918112 dated 20.10.2021 for clearance of Aluminium Foil of thickness 5.3 microns by classifying them under CTH 7607 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975). 2.2 The said goods were imported from Hong Kong and China respectively. As per the provisions of the Notification No. 51/2021-Customs (ADD) dated 16.09.2021, ADD was leviable on the goods sought to be cleared and cleared under these two Bills of Entries. Appellant had filed the bill of entries without assessing the anti dumping duty leviable under this notification thereby short paying the duty as indicated in the table below: S No Bills of Entry No. & date Port Name of Supplier Quantity of goods (Kg) Assessable Value Differential Duty payable 1 5552427 dated 23.09.2021 ICD Dadri Dingsheng Aluminium Industries (Hong Kong) Trading Co. Ltd., Hong Ko....
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....1,84,60,946/ -imported vide Bills of Entry as listed Annexure- A to the Show Cause Notice should not be held liable to confiscation as per provisions of Section 111(m) of the Customs Act, 1962 (v) Penalty should not be imposed on them under Section 114A and Section 114AA of the Customs Act, 1962, for the reasons discussed above. 2.6 The show cause notice was adjudicated as per order in original No 08/ADC/NOIDA-CUS/2024-25 dated 30.05.2024 holding as follows: ORDER 8. In view of the above discussion and findings, I pass the following Order:- (i) I order for reassessment of Bill of Entry No. 5552427 dated 23.09.2021 and Bill of Entry No.59181 12 dated 20.10.2021 filed by the M/s Uflex Limited in terms of Notification No.51/2021-CUS (ADD) dated 16.09.2021 which prescribes levy of antidumping duty at the rate 976.99 USD per MT & 398.45 USD per MT vide Sr.No.07 and 02 of the table of the Notification No.51/2021-CUS(ADD)dated 16.09.2021 respectively. (ii) I confirm the demand of differential Customs duty [anti dumping duty +IGST] amounting to Rs.41,30,000/-[Rupees Forty One Lakh Thirty Thousand Only] as details in Annexure-A to the Show Cause Not....
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....for the revenue. 4.1 We have considered the impugned order along with the submissions made in the appeal and during the course of arguments. 4.2 For imposition of penalty under Section 114A and 114AA, impugned order records the findings as follows: "10. Regarding the imposition of Penalty under Section 114A. I find that the adjudicating authority has imposed penalty under the above Section by holding that the ingredient of willful mis-statement or suppression of facts by the appellant has been clearly established in the present case. Thus, it was held that the appellant willfully short paid the duty of Customs on the subject goods which made themselves liable to be penalized under Section 114A of the Customs Act, 1962. 10.1 Further, regarding imposition of the penalty under Section 114AA, I observe that the adjudicating authority has held that the appellant has failed to comply with the anti-dumping notification and suppressed the fact by way of not mentioning the subject notification in impugned Bills of Entry for importing impugned goods from Hong Kong and China thus the appellant has knowingly and intentionally made signed caused to be made and presented ....
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.... a large organization and also being an AEO T2 Certificate holder, the appellant was to ensure that their employees should be well aware of Customs Law and procedures; should have satisfactory procedure for verifying the accuracy of Customs declarations and in case on an error has been occurred, take immediate remedial steps. However, in the present case, the appellant has failed to comply with these responsibilities cast upon them as an AEO T2 Certificate holder. I am of the considered view that in the present era of self-assessment of duty, the appellant was completely responsible to assess the duty correctly whereas in the present case, the appellant failed to comply with their responsibility to assess the duty correctly and mis-stated and suppressed the facts in the impugned Bill of Entry by way of not mentioning the correct and complete information regarding their duty liability. Thus, I hold that the appellant is liable to be penalized under the provisions of Section 114A of the Customs Act, 1962. 10.5 I also find that in the present case, the appellant has failed to comply with the existing legal provisions and intentionally used documents for import of impugned goo....
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.... 4.5 The facts as reproduced above do not support the case of the revenue alleging suppressing, mis-statement, misdeclaration etc., with the intent to vide payment of duty. We note that Hon'ble Supreme Court has in the case of Rajasthan Spinning and Weaving Mills Ltd. [2009 (238) ELT 3 (SC)] has clearly held that in absence of these ingredients penalty cannot be imposed under Section 11AC of Central Excise Act, 1944 which is pari-materia to Section 114A of the Customs Act, 1962. 4.6 Delhi bench has in the case of Midas Fertchem IMPEX Pvt. Ltd. [2023 (384) ELT 397 (T-Del)] observed as follows: "50. In practice, the importer makes an entry under Section 46 and also self-assesses duty under Section 17(1) by filing the Bill of Entry. There is no separate mechanism to self-assess duty. The columns pertaining to classification, valuation, rate of duty and exemption notifications which determine the duty liability are part of the Bill of Entry which is also an entry under Section 46. Thus, although the Bill of Entry requires the importer to make a true declaration and further to confirm that the contents of the Bill of Entry are true and correct, the columns pertaining to clas....
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....he duty or interest, as the case may be, as determined under sub-section (8) of section 28 shall also be liable to pay a penalty equal to the duty or interest so determined : Provided that where such duty or interest, as the case may be, as determined under sub-section (8) of section 28, and the interest payable thereon under section 28AA, is paid within thirty days from the date of the communication of the order of the proper officer determining such duty, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent of the duty or interest, as the case may be, so determined : Provided further that the benefit of reduced penalty under the first proviso shall be available subject to the condition that the amount of penalty so determined has also been paid within the period of thirty days referred to in that proviso : Provided also that where the duty or interest determined to be payable is reduced or increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, for the purposes of this section, the duty or interest as reduced or increased, as the case may be, shall be tak....
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....der section 77 (in either case hereafter in this section referred to as the declared value) is higher than the value thereof, to a penalty not exceeding the difference between the declared value and the value thereof or five thousand rupees, whichever is the greater; (iv) in the case of goods falling both under clauses (i) and (iii), to a penalty not exceeding the value of the goods or the difference between the declared value and the value thereof or five thousand rupees, whichever is the highest; (v) in the case of goods falling both under clauses (ii) and (iii), to a penalty not exceeding the duty sought to be evaded on such goods or the difference between the declared value and the value thereof or five thousand rupees, whichever is the highest." 57. As may be seen the ingredients necessary for imposing a penalty under Section 114A are identical to the ingredients necessary to invoke extended period of limitation. We have found that extended period of limitation cannot be invoked in these cases. Logically, the penalty under Section 114A imposed on the appellant importers also cannot be sustained for the same reason. 4.7 In case of Biotavia Lbs Pvt.....
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.... entry assessed by the appraising officer did not contain element of anti-dumping duty persuades us to hold that the failure on the part of the appellant was only a bona fide omission. Further, sub-Section (2) of Section 28 provides that if a person is chargeable to duty or interest and the duty along with interest as ascertained by the proper officer is paid, then no show cause notice shall be served and no penalties to be imposed. In such circumstances we are of the considered view, that the confiscation of goods and imposition of redemption fine and penalty is totally unjustified. The impugned order is therefore not sustainable." 4.8 In case of Daxen Agritech India Pvt Ltd. [2024 (20) CENTAX 467 (T-Del)] Delhi bench observed as follows: 15. We now come to the issue of imposing penalty under section 114A of the Customs Act on the appellant. As we have held that it is not a case of willful suppression, misstatement or mis- declaration by the appellant, the ingredients required for invoking the penalty being the same, we hold that penal action under the provisions of section 114A as imposed by the impugned order is not justifiable and is hereby set aside. We are also su....
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.... itself does not amount to mis-declaration of the goods and there is nothing on record to show that the description of the goods in the Bill of Entry and other documents as well as in the test report do not match. The department's case has to fail on this ground alone for the extended period of limitation and correspondingly the penalties also need to be set aside. 6. ......... 7. As we have found that there was no misdeclaration at all and the appellant is entitled for the exemption notification in any case and there is nothing to be gained by the appellant by classifying their product under one heading or the other, we find the confiscation of the goods and imposition of penalties are also not sustainable and need to be set aside and we do so." 4.10 In view of the above discussions we do not find any merits in the impugned order to the extent it upholds the penalties imposed on the appellant under Section 114A and 114AA. 5.1 Appeal is partly allowed as indicated in para 4.10 above. (Operative part of the order pronounced in open court) ============= Document 1 Original (Customs copy) Indian Customs EDI System - Imports V1. 5R001 APL Dadri BILL OF E....