Full Judgment
The importers, in their statement under Section 108 of the Customs Act, waived show-cause notice and prayed for a lenient view.
2. On 15-12-1999, two representatives of the importers, accompanied by the present appellants, presented their case before the Commissioner of Customs and admitted their offence. On the basis of such admission of offence of the importers, the Commissioner of Customs reached a finding that there was fragrant violation of Customs Law with intent to evade payment of duty and, accordingly, passed order dated 16-12-1999 against the importers and the present appellants.
3. The decision against the importers consisted of confiscation of the goods with option to redeem the same on payment of fine of Rs. 5 lacs, confirmation of demand of duty of Rs. 5,23,800/- and imposition of a penalty of an equal amount under Section 114A of the Act. As against the present appellants, the Commissioner imposed a penalty of Rs. 25,000/-under Section 112(a) of the Customs Act. The present appeal is against this part of the order of the Commissioner.
4. I have carefully examined the impugned order and connected records and have heard Shri Manoj Sharma, learned Advocate for the appellants and Shri T.A. Arunachalam, learned JDR, for the respondent.
5. It is apparent on the face of the record that the Commissioner had imposed penalty on the appellants without issuing any show cause notice, or otherwise giving any opportunity of hearing, to them. Though the importers had waived show-cause notice as noted by the Commissioner, the appellants had not done so. It is also noted that the penalty has been imposed on the appellants under Section 112(a) of the Customs Act. On a perusal of this provision of law, I note that an order of imposition of penalty by invoking this provision of law should invariably be based on a finding of facts as regards any commission or omission or abetment of such commission or omission (on the part of the person sought to be penalised under this provision of law) as contemplated under Clause (a) of Section 112 ibid. Such a finding is lacking in the impugned order. In view of these infirmities of the order of the lower authority, the impugned order cannot be sustained.
6. Learned JDR has pointed out what has been recorded by the Commissioner in Para 4.3 of his order. This para indicates that the present appellants were represented at personal hearing by Shri Manpreet Singh. Even if this is assumed to be factually correct, it cannot absolve the lower authority of the legal obligation to show cause the party before penalising him under Section 112(a) of the Customs Act.
7. In view of the foregoing findings and observations, I set aside the impugned order and allow this appeal. It is, however, made clear that this order will not stand in the way of the competent customs authorities proceeding against the appellants after issuing to them proper show-cause notice, if such proceedings are otherwise permissible in law.