Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, ... vs Hcl Technologies Ltd on 8 June, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: C/145/2009-SM, C/146/2009-SM, C/147/2009-SM, C/148/2009-SM, C/149/2009-SM, C/150/2009-SM, C/151/2009-SM, C/153/2009-SM [Arising out of Orders-in-Appeal No. 41 to 47/2008 dated 31/10/2008 passed by the Commissioner of Customs, Central Excise & Service Tax, Hyderabad] [Arising out of Order-in-Appeal No. 57/2008 dated 24/11/2008 passed by the Commissioner of Customs, Central Excise & Service Tax, Hyderabad-II ] For approval and signature: HON'BLE MR. B.S.V. MURTHY, TECHNICAL MEMBER 1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Commissioner of Central Excise, Customs and Service Tax Hyderabad-II L.B Stadium Road, Basheerbagh, Hyderabad 500 004 Andhra Pradesh Appellant(s) Versus HCL Technologies Ltd. 1st Floor, Right 7 Left Wings, VIT Park, Plot No. 17, Software Units Layout, Madhapur, Hyderabad Respondent(s)
The Master of ITC Global C/o. Interocean Shipping (India) Pvt. Ltd., IV/2, Sunrise Apartments, Beach Road, Pandurangam, Visakhapatnam Respondent(s) Appearance:
Mr. Pakshi Rajan, AR For the Appellant None For the Respondent Date of Hearing: 08/06/2015 Date of Decision: 08/06/2015 CORAM:
HON'BLE MR. B.S.V. MURTHY, TECHNICAL MEMBER Final Order Nos. 21464-21471 / 2015 Per: B.S.V. MURTHY In all these cases imports were made by importers who did not have IE Code and consequently proceedings were proposed to be initiated. However the importers requested for adjudication without issue of show-cause notice. Thereafter original authority imposed penalty of Rs. 2000/- each (Rupees Two Thousand only) in all cases under Section 117 of Customs Act 1962. Being aggrieved with this order appeals were filed by Revenue before Commissioner (Appeals) who also rejected the appeals. Matter has been carried before the Tribunal now.
2. In all these cases no show-cause notice has been issued and no proposal has been made for confiscating the goods at all. However request of the Revenue is that goods should have been confiscated and redemption fine should have been imposed and penalty under Section 112 of Customs Act 1962 should have been imposed.
3. In the impugned orders or in the appeal memorandum, nowhere there is indication as to what is the value of the goods imported, what is the duty liability involved. No doubt the goods may be liable to confiscation strictly going by the proviso to Section 111(d) read with Foreign Trade Act. However the Revenue never chose the option of imposing penalty under Section 112 at the original stage in all these cases and not resorting to confiscation, in my opinion it is too late or the matter to be reopened. The proper course to be adopted would have been to remand the matter to the original authority so that the importers are given an opportunity to contest proposal for confiscation, imposition of redemption fine (in the absence of goods) and imposition of penalty under Section 112. It is settled law that when goods are not available and have already been released on payment of duty, they cannot be confiscated. Only in the case of provisional assessment where goods are released conditionally, confiscation can be resorted to and fine can be imposed if the goods are not available. That being the position, to reopen and remand the matter for the purpose of confirmation of confiscation would not be appropriate and I do not consider it necessary. No doubt penalty can be imposed for rendering the goods liable to confiscation. In my opinion, for the only offence of not having the IE Code at the time of importation, imposing penalty under Section 112 and remanding the matter for that purpose may not be necessary. It is not the case that no penalty has been imposed on the importers in this case. In my opinion under these circumstances penalty imposed by the original authority in all the cases will serve the purpose and therefore I consider that it would not be appropriate to consider the appeals. Accordingly all the appeals are rejected.
(Order pronounced in open court) (B.S.V. MURTHY) TECHNICAL MEMBER iss