Sanghvi Enterprises Vs. Commissioner of Customs - Court Judgment

Excerpt:

.....act 1962, since the machines were not available a penalty of rs. 75,0007- has been arrived under section 112(a) of the customs act, 1962.2. there is force in the ld. dr. submission, that, penalty in lieu of confiscation cannot survive moreover, the notice appears to be issued under section 112 and not specifically 112(a) of the customs act 1962.thus, they could not defend themselves adequately.3 in this view of the matter, it is found that the proceedings taken out & arrived for penalty under section 112(a) of the customs act cannot be sustained however, since liability confiscation, for the said machines disposed, in violation of exim policy, is not under challenge before this tribunal & since goods are liable to confiscation under section 111(d) 111(o) of the customs act, 1962 the liability of penalty has to be arrived as per the law. for this purpose the order is set aside. the order is remanded to original authority to redetermine the quantum of penalty after hearing the appellant.

Judgment:

1. Heard both sides the appellant is aggrieved by the order of Penalty under Section 112(a) of the Customs Act, 1962 amounting to Rs. 75, 000/- imposed for having disposed five second hand machine cleared on actual user condition. The violation of the condition on no sale resulted in liability to confiscation under Section 11(d) and 11(o) of the Customs Act 1962, Since the machines were not available a penalty of Rs. 75,0007- has been arrived under Section 112(a) of the Customs Act, 1962.

2. There is force in the Ld. DR. submission, that, penalty in lieu of confiscation cannot survive moreover, the notice appears to be issued under Section 112 and not specifically 112(a) of the Customs Act 1962.

Thus, they could not defend themselves adequately.

3 In this view of the matter, it is found that the proceedings taken out & arrived for penalty under Section 112(a) of the Customs Act cannot be sustained However, since liability confiscation, for the said machines disposed, in violation of Exim Policy, is not under challenge before this Tribunal & since goods are liable to confiscation under Section 111(d) 111(o) of the Customs Act, 1962 the liability of penalty has to be arrived as per the law. For this purpose the order is set aside. The order is remanded to original authority to redetermine the quantum of penalty after hearing the appellant.