TaxTMI 
TaxTMI 
2026 (9) TMI 100
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.... licence under the Drugs and Cosmetics Act for its clearance. The other imported items were permitted to be cleared provisionally by the Ld. Adjudicating Authority. The appellant thereafter based on communications with the overseas supplier sought for re-export of the goods as they have been wrongly dispatched to the appellant herein. After due process of law, the Ld. Adjudicating Authority absolutely confiscated the goods contained in 203 cartons and allowed re-export of the goods on payment of redemption fine of Rs.4.00 lakhs. He confiscated the goods contained in 782 cartons with an option to redeem the goods on payment of fine. The Ld. Authority also demanded differential duty along with interest and imposed penalty under sec. 112(a) and sec. 114AA of the Customs Act, 1962. The bank guarantee of Rs.3,74,126/- was also appropriated towards the liability. The appellant preferred an appeal against the above order and the same was dismissed by the Ld. Commissioner (Appeals). Hence the present appeal. 3. The Ld. Counsel Shri A.K. Jayaraj appeared for the appellant and Smt. O.M. Reena, Ld. Authorized Representative appeared for the respondent. 3.1 Ld. Counsel Shri A.K. Jayaraj ....
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....al in the case of Hemant Bhai R. Patel Vs Commissioner of Customs, Ahmedabad [2003 (153) ELT 226 (Tri - LB)], had held that the Adjudicating Authority has the power to impose redemption fine as well as penalty even when permission is granted for re-exporting confiscated goods. She prayed that the appeals may be dismissed. 4. We have heard both sides and have perused the connected documents. We find that the issue pertains to the import of 985 cartons of miscellaneous goods, cosmetics, toys etc. vide Bill of Entry No 2704362 dated 04.04.2019. On examination, 203 cartons were found to contain cosmetic items which had been imported in violation of the prohibition imposed under the Drugs and Cosmetics Act 1940 read with the Drugs and Cosmetic Rules, 1945. Quantity mis-declaration was also found in individual cartons, for ex. shuttle cocks declared as 50 per carton were found to be having 50 dozen shuttle cocks per carton. It was also alleged that the price of the goods as referred to at para 7.1 of the OIO had been mis-declared and also used to conceal the prohibited goods and were also liable for confiscation under section 119 of CA 1962. A portion of the goods which did not includ....
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....es not have to file a fresh application for export post redemption of the goods and await an uncertain outcome. The exercise of such powers by the Proper Officer finds approval from the Apex Court. The Hon'ble Supreme Court in Hirday Narain vs Income-Tax Officer, Bareilly [1971 SCR (3) 683 / AIR 1971 SC 33] held that; "If a statute invests a public Officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of authority are shown to exist. Even if the words used in the statute are prima facie enabling the Courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right -public or private-of a citizen. In Julius v. Bishop of Oxford it was observed by Cairns, L.C., at pp. 222-223 that the words "it shall be lawful" conferred a faculty or power, and they did not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is ....
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....Section 11AC the word "also" has been used but that does not appear to be quite material in interpreting the word "liable" and if liability to pay penalty has to be fixed by the adjudicating authority. The word "liable" in the Concise Oxford Dictionary means, "legally bound, subject to a tax or penalty, under an obligation". In Black's Law Dictionary (sixth edition), the word "liable' means, "bound or obliged in law or equity; responsible; chargeable; answerable; compellable to make satisfaction, compensation, or restitution.... Obligated; accountable for or chargeable with. Condition of being bound to respond because a wrong has occurred. Condition out of which a legal liability might arise.... Justly or legally responsible or answerable." 31. When we examine Rule 173Q it does appear to us that apart from the offending goods which are liable to confiscation the person concerned with that shall be liable to penalty up to the amount specified in the Rule. It is difficult to accept the argument of the appellant that levy of penalty is discretionary. It is only the amount of penalty which is discretionary. Both things are necessary : (1) goods are liable to confiscati....