Custom, Excise & Service Tax Tribunal
Whether Press Reporters May Be Allowed ... vs Shri Sangit Agarwal on 27 August, 2012
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
EAST ZONAL BENCH: KOLKATA
CUSTOMS APPEAL NO.C/A/219/2006
(ARISING OUT OF ORDER-IN-ORIGINAL NO.KOL/CUS/PORT/12/06 DATED 30.01.2006 PASSED BY COMMISSIONER OF CUSTOMS, KOLKATA)
FOR APPROVAL AND SIGNATURE OF
SHRI S.K.GAULE, HONBLE TECHNICAL MEMBER
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER
1. Whether Press Reporters may be allowed to see :
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982 ?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not ?
3. Whether Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
Authorities ?
COMMISSIONER OF CUSTOMS (PORT), KOLKATA
APPELLANT (S)
VERSUS
SHRI SANGIT AGARWAL
(M/S. UNITED TRADERS)
RESPONDENT (S)
APPEARANCE:
SHRI S.CHAKRABORTY, A.R.(ASSTT. COMMR.) FOR THE REVENUE;
NONE FOR THE RESPONDENT(S).
CORAM:
SHRI S.K.GAULE, HONBLE TECHNICAL MEMBER DR. D.M.MISRA, HONBLE JUDICIAL MEMBER Date of Hearing/Decision:27.08.2012 ORDER NO Per Shri S.K.Gaule Heard the learned AR for the Revenue. None present for the Respondent, despite notice.
2. Revenue filed this Appeal against the Order-in-Original No. Kol/Cus/Port/12/06 dated 30.01.2006 passed by the Commissioner of Customs, Kolkata.
3. Briefly stated facts of the case are that the Officers of DRI acting on an information booked the case against one M/s. United Traders, New Delhi for illegal import of Compact Fluorescent Lamps (CFL) of Chinese Origin, by misdeclaring the same as Christmas Lights contained in 40 ft. container, which would attract anti-dumping duty.
4. Proceedings were initiated against various persons including the present Respondent. The goods were absolutely confiscated and penalties ranging from Rs.5,000/- to Rs.5,00,000/- under Section 112(a) & (b) of the Customs Act, 1962, were imposed on various noticees in the instant case. However, the learned Commissioner did not impose any penalty against present Respondent. Hence, Revenue is in appeal.
5. The contention of the learned AR appearing for the Revenue is that the show cause notice was issued for imposition of penalty under Section 112(a) & (b) of the Customs Act, 1962 on the ground that the present Respondent was actively involved in the entire episode of misdeclaration rendering the goods liable for confiscation. The contention is that the learned Commissioner in the sub-para (vii) of Para 54 found that the active involvement of Shri Sangit Agarwal in the entire episode of misdeclaration rendering the goods in question, liable for confiscation and accordingly, the Respondent was held liable for penal action under section 112(a) & (b) of the Customs Act, 1962. However, he neither imposed any penalty nor gave any contrary finding to the above.
6. We have considered the submissions and perused the records. On perusal of the show cause notice, we find that there was a proposal for imposition against the present Respondent under Section 112(a) & (b) of the Customs Act, 1962. In so far as the allegation against the Respondent is concerned, the learned Commissioner at Para 54(vii) of his Order has observed as follows:-
vii) Shri Sangit Agrawal the key person in the entire import consignment being the man who handed over the import documents to Shri Malay Sarkar and the Clearing Agent firm, M/s. Associated Clearing Agency for handling the import documents and had given all the restrictions regarding the post import clearance of the goods and had proved beyond scope of doubt his culpable mens rea in the entire episode which has been further corroborated by the fact that during the investigation he has evaded frequent summons and even during the attempt to search of his residential premises, he had absented himself from the scene. In this regard it is not learnt the reasons for the failure of the investigating DRI officials to go for a search of the residential office premises. Shri Sangit Agrawal, New Delhi. with a Panchnama of the effect observing the usual formalities which would be more appropriate action but that not being done as the adjudicating authority, it is not possible to traverse beyond the scope of the show cause notice. Nevertheless, I find that the active involvement of Shri Sangit Agrawal in the entire episode of misdeclaration rendering the goods liable for confiscation. Therefore. I find that Shri Sangit Agrawal is liable to penalty under section 112 (a) & (b) of the Customs Act, 1962. 6.1. From the above, it is clear that the learned Commissioner has held that the Respondent is liable for penalty. However, he has neither imposed any penalty nor given any contrary finding. We also find that the present Respondent has not challenged the above finding of the learned Commissioner. In these circumstances, we remand the matter to the learned Commissioner to determine the quantum of penalty. Needless to say that a reasonable opportunity of hearing may be granted to the Respondent. It is made clear that the Appeal in respect of the present Respondent alone, is disposed of, vide the present Order. The Appeal is disposed off, as above.
Dictated and pronounced in the open court.
SD/- Sd/-
(D.M.MISRA) (S.K.GAULE)
JUDICIAL MEMBER TECHNICAL MEMBER
DUTTA/
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CUSTOMS APPEAL NO.C/A/219/2006
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