2004 (3) TMI 193

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....s containing 284.5 Kgs. of Carbon dioxide under Section 111(m) of the Customs Act and gave option to the appellants to redeem the same by paying a fine of Rs. 20,000/-. He also held that 68 other gas cylinders (provisionally released) were liable to be confiscated and appropriated Rs. 10,000/- from the security amount towards redemption fine. He ordered likewise in respect of the truck which belonged to the appellants. The Commissioner, further, imposed a penalty of Rs. 10,000/- on the party under Section 112 of the Act. 2. Heard both sides. Ld. Counsel for the appellants submits, at the outset, that the show cause notice and subsequent proceedings are not maintainable. Counsel has given a brief account of the relevant facts of the case ....

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.... that the finality of assessment under Section 47 is a fact acknowledged in the impugned order. Therefore, relying on case law, ld. Counsel argues that the show cause notice alleging misdeclaration in the Bill of Entry could not have been issued. The department, if aggrieved, in any manner by the assessment made by the proper officer of Customs, could only have resorted to the appellate remedy available under the Customs Act. The case laws cited by the Counsel are the following :- (i)         Union of India and Others v. Popular Dyechem [1987 (28) E.L.T. 63 (Bom.)]. (ii)        Decor India and Others v. CC, New Delhi [1987 (31) E.L.T. 400 (T)]. Ld. DR has op....

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....inate officer to file an appeal to the Commissioner (Appeals). The department did not resort to this remedy. Instead, they issued a show cause notice for confiscating the goods and the vehicle as also to penalise the importer on the ground of misdeclaration in Bill of Entry. The correctness or otherwise of the declaration by the importer stood already decided by the assessment order issued under Section 47, which could not be reopened through show cause notice. It could have been done only by recourse to Section 129D. This is precisely what was held by the Bombay High Court in the cited case of Popular Dyechem (supra) and by this Tribunal in the case of Decor India (supra). Ld. Counsel has succeeded in substantiating his plea that the show ....