Customs, Excise and Gold Tribunal - Mumbai
Al-Falah Exports vs Cce on 19 September, 2005
ORDER S.S. Sekhon, Member (T)
1. After hearing both sides, it is found that the Ld. Advocates reliance on the decision of this Tribunal in the case of Jindal Vijaynagar Steel Ltd., 2004(177) ELT 937 setting aside penalties under Customs Act, 1962, since duties had been discharged prior to the issue of the show cause notice, alleging clandestine removal of the goods and the Ld. DR's reliance on the decision of another Bench in the case of Saheli Synthetic Pvt. Ltd and Ors. v. CCE, Kandla vide Order No. A/681 to 683/WZB/2005-CII dtd 19/7/05 where the Bench held that the Larger Bench decision in the case of Machino Montell (I) Ltd., would not absolve the penalty consequences in case where clandestine removal is involved.
Since the decision in case of Jindal Vijaynagar Steel Ltd., 2004 (177) ELT 937 also relied upon the decision of Machino Montell Ltd of the Tribunal in case of clandestine removal, there is apparent conflict in the two decisions interpretation and application of the Larger Bench decision in cases under the Customs Act, 1962.
2. Before other issues herein could be determined, due to the apparent conflict, the matter may be placed before the Hon. President to constitute a Larger Bench to resolve the difference. The question proposed for reference to the Larger Bench is -
i) Whether the decision of Machino Montell Ltd., would apply to penalties under the Customs Act, 1962 as decided in case of Jindal Vijaynagar Steel, or it would not apply, as held in the case of M/s. Saheli Synthetics Pvt. Ltd. vide Order No. A/681 to 683/WZB/2005-CII dtd 19/7/05.
Registry to place the file before Hon' President for orders.