Custom, Excise & Service Tax Tribunal
Procter & Gamble Home Products Ltd vs Cc (Import) on 13 May, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPLICATION NO. C/S/96705/13
IN APPEAL NO. C/87852/13 Mum
(Arising out of Order-in-Appeal No. 369(SIIB Exp)/2013 (JNCH)/EXP-82 dated 22.04.2013 passed by the Commissioner of Customs (Appeals), Nhava Sheva))
For approval and signature:
Honble Shri Ashok Jindal, 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 : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
Procter & Gamble Home Products Ltd.
:
Appellant
Versus
CC (Import)
Nhava Sheva
Respondent
Appearance Shri T. Vishwanathan, Advocate For appellants Shri D. Nagvenkar, Addl. Commissioner (A.R.) For Respondents CORAM:
Shri Ashok Jindal, Member (Judicial) Date of Hearing : 13.05.2014 Date of Decision : 13.05.2014 ORDER NO.
Per Ashok Jindal The appellant is in appeal along with an application for stay against the impugned order wherein a penalty of Rs.20,00,000/- has been imposed on them under Section 114(i) of the Customs Act, 1962.
2. Brief facts of the case are that the appellant has imported Wood Pulp Cellulose Foley Fluffs from USA by classifying them under tariff heading 4702. The said goods were re-exported to China by classifying under RITC 3302 under free shipping bill. The classification was accepted and the goods were allowed to re-export. Later-on, the appellant filed an application for amendment in the shipping bill with regard to the value of the impugned goods. It was found that during importation the goods were classified under RITC 4702 and the same were classified under RITC 3302 at the time of re-export. Therefore, a penalty of Rs.20,00,000/- has been imposed on the appellant. The said order was challenged before the Commissioner (Appeals) who in turn directed the appellant to deposit 50% of the penalty imposed on them for consideration of their appeal which the appellant has failed to do so. Therefore, their appeal was dismissed on the ground of non-compliance under Section 129E of the Customs Act, 1962. Aggrieved by the said order, the appellant is before me.
3. After hearing for sometime, I find that the appeal itself can be disposed of at this stage. Therefore, the stay application as well as the appeal are taken up together for consideration and disposal.
4. Heard both sides.
5. The learned Counsel for the appellant submits that in this case the appellant requested vide their letter for amendment of the value declared in the shipping bill. The amendment was not entertained by the department but impugned proceedings were initiated. There was no proposal for imposition of penalty in the proceedings and without issuing a show-cause notice, penalty of Rs.20,00,000/- has been imposed on the appellant which is in gross violation of principles of natural justice. He further submits that in the same adjudication order a penalty has been imposed on the CHA which has been challenged before the Honble High Court of Bombay. In the said matter, the Honble High Court vide order dated 18.07.2012, has set aside the penalty imposed on the CHA on the ground that the same cannot be imposed without issuing a show-cause notice. Hence, the learned Advocate submits that penalty is not imposable on the appellant also and prays that as the impugned order is not on merits therefore, the same be set aside.
6. Considered the submissions and perused the records.
7. As in the case of CHA, the penalty imposed on him has been set aside by the Honble Bombay High Court on the ground that penalty cannot be imposed without issuing a show-cause notice. In these circumstances, penalty cannot be imposed on the appellant also. Therefore, I set aside the impugned order as the impugned order is without merits and remand the matter back to the Commissioner (Appeals). The Commissioner (Appeals) shall first to consider the issue whether a penalty can be imposed on the appellant without issuing a show-cause notice or not to consider their application for waiver of pre-deposit of penalty under Section 129E of the Customs Act, 1962 thereafter to decide the issue on merits.
8. The appeal as well as the stay application are disposed of in the above terms.
(Dictated in Court) (Ashok Jindal) Member (Judicial) nsk ??
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