Custom, Excise & Service Tax Tribunal
Commissioner Of Customs & Central ... vs M/S Ruby Impex on 28 November, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
REGIONAL BENCH : ALLAHABAD
Appeal No.C/59161/2013-EX[DB]
Arising out of Order-in-Original No.13/Commissioner/GZB/CUS/2012-13 dated 31.03.2013 passed by Commissioner Customs & Central Excise, Ghaziabad.
Commissioner of Customs & Central Excise, Ghaziabad
APPELLANT(S)
VERSUS
M/s Ruby Impex
RESPONDENT (S)
APPEARANCE:
Shri T.K. Sikdar, Asstt. Commr. (A.R.) for the Department (s) None for the Assessee CORAM:
HONBLE SHRI JUSTICE DR. SATISH CHANDRA, PRESIDENT HONBLE MR. ANIL G. SHAKKARWAR, MEMBER (TECHNICAL) DATE OF HEARING & PRONOUNCEMENT : 28.11.2016 FINAL ORDER NO.- 71105/2016 _ Per Mr. Anil G. Shakkarwar:
The present appeal is filed by the Revenue against Order-in-Original No.13/Commissioner/GZB/CUS/2012-13 dated 31.03.2013. The prayer in the said appeal is to impose penalty on Shri Devesh Pandey, Inspector and Shri S.C. Sahu, Superintendent and to enhance penalty impose on M/s Ruby Impex.
2. The brief facts of the case are that through impugned Order, Original Authority ordered for absolute confiscation of Lead Scrap, Zinc Scrap, live cartridges of different bore, empty cartridge castings and brass scrap. The confiscation was absolute and option to redeem the goods was not provided in the said impugned order. The Original Authority imposed penalty of Rs.25 lakh on M/s Ruby Impex, Jalandhar. Further, the Original Authority dropped proceedings against Shri Devesh Pandey, Inspector and Shri S.C. Sahu, Superintendent .
3. Aggrieved by the said Order-in-Original, Revenue is before this Tribunal with a prayer as stated above.
4. The grounds of appeal are that Shri Devesh Pandey, Inspector and Shri S.C. Sahu, Superintendent working at ICD, Loni, Ghaziabad failed to examine the said goods and as a result, failed to perform their duties in accordance with the Customs Act. In respect of penalty on M/s Ruby Impex, the ground stated in the appeal is that the importer has imported restricted and prohibited items.
5. Shri T.K. Sikdar, Assistant Commissioner (AR) for the Revenue has supported the grounds of Appeal. The counsel for respondent-assessee have requested for adjournment due to ill health.
6. Having considered the contentions, we have carefully gone through the findings of Original Authority, which is available at Page 66 of impugned Order-in-Original, wherein the Original Authority has held that there is no evidence on record to justifying penalty under Section 112 and that the Officers have neither connived nor indulged in the fraudulent act and that the charges, made out against them, are not explicit and the only ground made out is that they ought to have examined the containers fully and discovered discrepancies. The Original Authority further held that the penal provisions, under Section 117 of Customs Act, 1962, is residuary in nature and can be invoked only in the situation when no express penalty is provided, elsewhere in the Customs Act. He further held that since the show-cause-notice proposed imposition of penalty under Section 112 of Customs Act, 1962 against the two Officers, the provisions of Section 117 of Customs Act, 1962 were not invokable. We find that above findings by Original Authority are sustainable and, therefore, we reject the appeal filed by the Revenue in respect of prayer to impose penalty on Shri Devesh Pandey, Inspector and Shri S.C. Sahu, Superintendent. In respect of penalty imposed on M/s Ruby Impex, we find that there is no reason to interfere with the same. In view of above, we dismiss the Appeal filed by Revenue.
(Dictated & pronounced in the open Court)
SD/ SD/
(JUSTICE DR. SATISH CHANDRA) (ANIL G. SHAKKARWAR)
PRESIDENT MEMBER (TECHNICAL)
Mishra
3
Appeal No.C/59161/13