Custom, Excise & Service Tax Tribunal
M/S Cipla Ltd vs Commissioner Of Customs (Export), ... on 24 December, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. IV Application No. C/S/1255/11 in Appeal No. C/412/11 (Arising out of Order-in-Appeal No. 115(Gr.VII-D)/2011(JNCH)/EXP-29 dated 14.3.2011 passed by the Commissioner of Customs (Appeals), Mumbai-II). For approval and signature: Honble Shri Anil Choudhary, 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 : Yes 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? ====================================================== M/s Cipla Ltd. Appellant Vs. Commissioner of Customs (Export), Nhava Sheva Respondent Appearance: Shri Brijesh Pathak Advocate for Appellant Shri M.S. Reddy, Dy. Commr. (AR) for Respondent CORAM: SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) Date of Hearing: 24.12.2013 Date of Decision: 24.12.2013 ORDER NO. Per: Shri Anil Choudhary
The appellant M/s Cipla Ltd. has preferred this appeal against Order-in-Appeal No. 115(Gr.VII-D)/2011(JNCH)/EXP-29 dated 14.3.2011 passed by the Commissioner of Customs (Appeals), Mumbai-II.
2. The brief facts of the case are that the appellant M/s Cipla Ltd. had filed Bill of Entry No. 824506 dated 12.5.2008 wherein the currency as per invoice was Euro, but was wrongly mentioned as Great Britain Pounds (GBP) in the Bill of Entry, resulting into excess value amounting to Rs.4,08,930/-. Another two Bills of Entry where currency as per invoice was GBP but in the Bill of Entry was wrongly mentioned as USD resulting into short levy in the Bills of Entry for Rs.12,43,119/- and Rs.11,46,595/-. Further, the appellant, on mistake being pointed out by the remitting bank, approached the customs department to examine the mistake committed by them as the mistake was of clerical nature and requested for rectification in the Bills of Entry and for payment of consequential duty. In view of three mistakes committed over a period of 8 months, a show-cause notice was issued dated 30.7.2009 as to why not duty amounting to Rs.7,21,267/-, short levied, should not be recovered along with interest. Further, as to why the goods should not be confiscated under Section 111(m) of the Customs Act, 1962 and as to why not penalty be imposed under Section 112(a) of the Customs Act. In the Order-in-Original, the Joint Commissioner of Customs has recorded the finding that the mistakes appeared to clerical in nature and in view of the facts that the mistakes do not appear to be mala fide, no order of confiscation was made and only differential customs duty of Rs.7,21,267/- was found to be recoverable and interest as applicable was levied and a penalty of Rs.10,000/- was imposed under Section 117 of the Act. Being aggrieved, the appellant preferred an appeal before the Commissioner (Appeals), who observed that due to error, the duty was calculated at lower side. Further, export obligation in the case of export made under DEEC Scheme are linked with the value of imports. Thus, the mistake was not of inconsequential nature even if the goods were cleared without payment of the duty and accordingly, the appeal was rejected. Being aggrieved, the appellant is before this Tribunal.
3. The appellant has raised only two grounds. The first being, in view of finding recorded by the adjudicating authority, the mistake found is bona fide and when no order of confiscation is made, the penalty should not be imposed under Section 117. Another ground is that the penalty has been levied under Section 117 of the Customs Act, which is not invoked in the show-cause notice and hence, on this ground also, the penalty is not sustainable. He further prays that the differential duty may be allowed to be debited from the advance license.
4. The learned Dy. Commissioner (AR) reiterates the Order-in-Original and also argues that repeated mistake in period of over eight months of similar type, does not speak well and was mala fide on part of the appellant and accordingly, the appellant be put to terms.
5. Having considered the rival contentions, in the facts and circumstances of the case, the requirement of pre-deposit is waived. In the facts and circumstances of the case, the penalty levied is set aside as the Section 117 was not invoked in the show-cause notice. Further, the appropriate authority of customs is directed to allow the debit of differential amount of duty from the concerned advance license provided that they were eligible at the time of import for clearance of the goods. Accordingly, the appeal is partly allowed by way of remand to the extent of verification of eligibility of advance licence scheme. The stay petition is also disposed of.
(Dictated and pronounced in Court) (Anil Choudhary) Member (Judicial) Vks/ 1