1. The above appeal arises out of the order of the Commissioner of Customs who has held that C.D. Mechanisms with PCB, Main PCB with Transformer, Control PCB with Volume PCH, Power P.C.B. and Remote mounted P.C.B. are liable to be confiscated under Section 111(d) of the Customs Act and has also imposed penalty of Rs. One lakh on the appellants under Section 112 of the Customs Act.
2. The ld. Counsel Shri Naresh Thacker for the appellants submits, first, that the appellant cannot be treated as importer of the goods in question as no Bill of Entry was filed by him, and as the goods supplied were not in conformity with the proforma invoice as shown in the letters of credit opened for the purpose of import. The second argument advanced by the ld. Counsel is that, in any case, even if the appellant is treated as the importer within the definition of Section 2(26) of the Customs Act, still the penalty cannot be imposed as there has been no misdeclaration or contravention of any of the provisions of Section 111, so as to warrant any penalty under Section 112. As far as the appellant is concerned, he is not claiming the goods, as according to him, the goods were supplied in excess of what has been ordered by the appellant.
3. The prayer for setting aside the penalty is opposed by the ld. SDR Shri A. Shukla who reiterates the findings of the Adjudicating Authority by drawing attention to the fact that the goods under confiscation required a valid import licence which was not produced by the appellant.
4. I have carefully considered the rival submissions. In the light of the view that I am taking on the question of liability to penalty, it is not necessary to give any finding on the issue as to whether the appellant is the importer of the goods in question. As far as the penalty is concerned, there has been no attempt on the part of the appellant to mis-declare the goods as no Bill of Entry was filed.
Therefore, contravention of provisions of Section 111 is not established and as a con sequence penalty under Section 112 is not justified. I, therefore, set aside the penalty as unsustainable and allow the appeal to this extent.