M/S. Sipani Automobiles Ltd. Vs. Commissioner of Central, - Court Judgment

Excerpt:
1. this stay application is filed by the party for the waiver of pre-deposit of penalty of rs.7 lakhs and stay of the recovery proceedings.2. after hearing for sometime with reference to the stay petition filed by the assessee, we felt that the matter can be disposed of.accordingly the matter was taken for regular hearing with the consent of both sides. arguing for the assessee shri.raghu submitted that since the goods are abandoned, the question of redemption fine as well as penalty under section 112 of the customs act, does not arise.3. as can be seen from, the records the appellants had imported 30 nos.of engine assembly and 30 nos. of gear box assembly through icd, bangalore vide igm no.668 dt.1.6.95, in container no.seau 2155659 from u.k. the bill of entry no.765 dt.7.6.95 was filed. the bill of entry was assessed on 6.1.98 as the importer had produced itc cum pd bond only on 1.12.97. on detailed examination of the cargo it was found that 54 sets of engine assembly and gear box assembly were imported instead of 30 sets. the importer in their letter dt.5.5.98 abandoned the goods and had stated that did not have original documents to warehouse the goods. the excess quantity i.e. 24 sets of engine assembly and gear box assembly had remained to be declared in the bill of landing or in the invoice or in the bill of entry filed by the importer. the cif value of the said 24 sets works out rs.38,21,576/-. by not declaring the said 24 sets in the bill of entry, the importer appeared to have contravened the provisions of section 46(4) of the of customs act, 1962, rendering the goods liable for confiscation under section 111(m) of the customs act, and rendering himself liable for penal action in terms of section 112 of the customs act, 1962. accordingly a show cause notice was issued. commissioner has ordered confiscation of the goods under section 111 of the customs act. however he gave an option to redeem the goods on payment of fine of rs.20 lakhs under section 125 of the customs act, 1962. in addition to redemption fine he imposed penalty of rs.7 lakhs on m/s.sal under section 112 of the customs act, 1962.shri.raghu submitted that since the party has abandoned the goods, question on payment of r.f. does not arise accordingly he did not press the issue with reference to redemption fine.he further submitted that personal hearing was fixed on 30.12.99 but the party could not appear on that date dut to personal difficulties.4. smt.radha arun, d.r appearing for the revenue submitted that the party has not availed of opportunity given and accordingly the commissioner was justified in passing exparte order on merits. she also said that there was not even a request for an adjournment.5. we have carefully considered the matter. after taking into consideration all the facts and circumstances and submissions made by both sides, we are of the view that one more opportunity is to be given. in the view taken we are remanding the matter to the concerned commissioner to examine the issue with reference to penalty under section 112 and to pass an appropriate order in accordance with law on providing an opportunity to the party. we make it clear that the party should co-operate with the department for easy disposal of the matter.6. thus this appeal is disposed of in the above terms. accordingly the stay petition also gets disposed of.

Judgment:
1. This stay application is filed by the party for the waiver of pre-deposit of penalty of Rs.7 lakhs and stay of the recovery proceedings.

2. After hearing for sometime with reference to the stay petition filed by the assessee, we felt that the matter can be disposed of.

Accordingly the matter was taken for regular hearing with the consent of both sides. Arguing for the assessee Shri.Raghu submitted that since the goods are abandoned, the question of Redemption fine as well as penalty under Section 112 of the Customs Act, does not arise.

3. As can be seen from, the records the appellants had imported 30 Nos.

of Engine assembly and 30 Nos. of Gear Box assembly through ICD, Bangalore vide IGM No.668 dt.1.6.95, in container No.SEAU 2155659 from U.K. The Bill of Entry No.765 dt.7.6.95 was filed. The Bill of Entry was assessed on 6.1.98 as the importer had produced ITC cum PD Bond only on 1.12.97. On detailed examination of the cargo it was found that 54 sets of Engine assembly and gear box assembly were imported instead of 30 sets. The importer in their letter dt.5.5.98 abandoned the goods and had stated that did not have original documents to warehouse the goods. The excess quantity i.e. 24 sets of Engine Assembly and gear box assembly had remained to be declared in the Bill of Landing or in the invoice or in the Bill of Entry filed by the importer. The CIF value of the said 24 sets works out Rs.38,21,576/-. By not declaring the said 24 sets in the Bill of Entry, the importer appeared to have contravened the provisions of Section 46(4) of the of Customs Act, 1962, rendering the goods liable for confiscation under Section 111(m) of the Customs Act, and rendering himself liable for penal action in terms of Section 112 of the Customs Act, 1962. Accordingly a Show Cause Notice was issued. Commissioner has ordered confiscation of the goods under Section 111 of the Customs Act. However he gave an option to redeem the goods on payment of fine of Rs.20 lakhs under Section 125 of the Customs Act, 1962. In addition to Redemption fine he imposed penalty of Rs.7 lakhs on M/s.SAL under Section 112 of the Customs Act, 1962.

Shri.Raghu submitted that since the party has abandoned the goods, question on payment of R.F. does not arise Accordingly he did not press the issue with reference to Redemption Fine.

He further submitted that Personal Hearing was fixed on 30.12.99 But the party could not appear on that date dut to personal difficulties.

4. Smt.Radha Arun, D.R appearing for the revenue submitted that the party has not availed of opportunity given and accordingly the Commissioner was justified in passing exparte order on merits. She also said that there was not even a request for an adjournment.

5. We have carefully considered the matter. After taking into consideration all the facts and circumstances and submissions made by both sides, we are of the view that one more opportunity is to be given. In the view taken we are remanding the matter to the concerned Commissioner to examine the issue with reference to penalty under Section 112 and to pass an appropriate order in accordance with law on providing an opportunity to the party. We make it clear that the party should co-operate with the Department for easy disposal of the matter.

6. Thus this appeal is disposed of in the above terms. Accordingly the stay petition also gets disposed of.