Custom, Excise & Service Tax Tribunal
Manoj Goel vs Commissioner Of Customs, Nhava Sheva on 13 July, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II Application NO. C/STAY/94501/14 APPEAL NO. C/86234/14 [Arising out of Order-in-Appeal No. 163(ADJN- IMP)/2014(JNCH)/IMP-151 dtd. 21/1/2014 passed by the Commissioner of Central Customs(Appeals), Mumbai-II] For approval and signature: Honble Mr. P.S. Pruthi, Member(Technical) Honble Mr Ramesh Nair, Member(Judicial) =======================================================
1. Whether Press Reporters may be allowed to see : No
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 : seen
of the Order?
4. Whether Order is to be circulated to the Departmental: Yes
authorities?
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Manoj Goel
:
Appellants
VS
Commissioner of Customs, Nhava Sheva
:
Respondent
Appearance
Shri A. K. Prabhakar, Advocate for the Appellants
Shri. A.K. Singh, Addl. Commissioner(A.R.) for the Respondent
CORAM:
Honble Mr. P.S. Pruthi, Member (Technical)
Honble Mr. Ramesh Nair, Member (Judicial)
Date of hearing: 13/7/2015
Date of decision: 13/7/2015
ORDER NO.
Per : P.S. Pruthi
Stay application is filed by the applicant against Order of the Commissioner(Appeals) in which appeal filed by the applicant was rejected for non compliance with provisions Section 129E of the Customs Act, 1962.
2. Briefly the facts are that M/s. Shiv Sai Enterprises and Manoj Goel, were show caused for under valuation of imported goods such as polyster films, viscose yarn embroidery treads etc. Show cause notice proposed to demand duty jointly and severally from M/s. Shiv Sai Enterprises and Manoj Goel. However, Adjudication order does not specify from whom duty is demanded. At the same time it imposes penalty on both under Section 114(A) of the Act. In appeal proceedings the Commissioner ordered pre-deposit of Rs. 18 lakhs by Manoj Goel for hearing appeal. On non compliance appeal was dismissed by the Commissioner(Appeals).
3. Ld. Counsel states that unless duty is confirmed against the applicant in the adjudication order, question of imposing penalty under Section 114(A) does not arise. Reliance is placed by the Ld. Counsel in the case of M. Gnanasekaran Vs. Commissioner of Customs, Tuticorin[2012(286) ELT 620(Tri. Chennai)], Golden Tabacco Ltd. Vs. Commissioner of Central Excise, Delhi[2015(317) ELT 164(Tri. Del.)], Rimjhim Ispat Ltd. Vs. Commissioner of Central Excise, kanpur[2013(293) ELT 124(Tri. Del.)], Ashwin Doshi Vs. Commissioner of Central Excise, Goa[2004( 173) ELT 488(Tri. Mumbai)] and Shri. Hiren R Kapadia Vs. Commissioner of Central Excise, Raigad[2013-TIOL-198-CESTAT-MUM]
4. Ld. A.R. reiterates the findings of the impugned order and states that Rs. 5 lakhs was deposited by Shri. Manoj Goel during the investigation and therefore he should be treated as importer. Ld. A.R. states that Tribunal should not confine itself to findings of first appellate authority and should consider decision of the Commissioner (Appeals) in the matter of pre-deposit. He also states that entire modus operandi of under valuation was the creation of Shri. Manoj Goel.
5. We find that there are various judgments and some are cited by the Ld. Counsel which have held that joint demand of duty and joint penalty cannot be confirmed/imposed against two persons. In this case the duty liability has not been fixed on any particular person but penalty has been imposed jointly under Section 114A. Department has to fix liability on the importer, whoever it may be.
6. In view of lack of findings regarding person on whom duty liability is fixed, we take up the appeal itself and find it appropriate to set aside the impugned order and remand the matter to the adjudicating authority for a fresh decision regarding individual fixing of duty and penalty liability. We may make it clear that on merits all issues are kept open. Appeal and Stay application are disposed of as above.
(Dictated in court) Ramesh Nair Member (Judicial) P.S. Pruthi Member (Technical) sk 4