Customs, Excise and Services Tax Appellate Tribunal (CESTAT): Sulekha Beevi (Judicial Member), dismissed the appeal against the order of Commissioner of Customs contesting the penalty imposed on appellants under section 114 A of the Customs Act, 1962.
The appellant argued that in a live consignment, the duty cannot be demanded under Section 28 (4) and the Bill of Entry can be reassessed only under Section 17 (4).On this basis, the appellant further argued that when duty demand under Section 28 (4) does not survive, penalty imposed under Section 114A has to be set aside. The appellant relied upon the decision of the Supreme Court in the case of Union of India v. Jain Shudh Vanaspati Ltd, 1996 (86) ELT 460 (SC) to argue that show cause notice under provisions of Section 28 could be issued only subsequent to the clearance of the goods under Section 47 of the Customs Act, 1962 and pleaded to set aside the penalty imposed.
The respondent contended that the demand raised under section 28 (4) was proper and the contention that the reassessment had to be done under Section 17 (5) was not applicable to the facts of the case as there was wilful suppression of facts and mis declaration of the goods.
The Tribunal observed that the appellant had later at the time of hearing of the appeal opted to abandon the goods and that in any way did not absolve the allegations of mis declarations confirmed and upheld by the impugned order. Further, the Tribunal observed that the appellant imported prohibited goods which were absolutely confiscated and the import of such undeclared goods established suppression on the part of the appellant with intention to evade customs duty. The Tribunal noted that merely because the appellant had abandoned the goods, the infractions committed by the appellant or the duty confirmed cannot be done away with.
The Tribunal further held that the reliance placed by the Counsel in the case of Union of India v. Jain Shudh Vanaspati Ltd., 1996 (86) ELT 460 (SC) was also incorrect because the Supreme Court in the said judgement had set aside the order of the High court and had directed that proceedings pursuant to the show cause notices under Sections 28 and 124 shall continue.[Trueman Global Solution (P) Ltd. v. Commr. of Customs, 2021 SCC OnLine CESTAT 2667, order dated 10-12-2021]