Cus - It is most unfortunate that Customs have not even cared to reply to any letter of appellant seeking refund consequent to Tribunal order - contempt proceedings to be initiated if amount not refunded: CESTAT
By TIOL News Service
MUMBAI, NOV 24, 2014: THE appellants are doing the business of consolidation for their customers. Due to erroneous stuffing, the cargo which was allowed clearance on 8.12.2008 instead on being on vessel remained in the shed and cargo which was to remain in shed pending examination and clearance by Customs reached the vessel which sailed for Jabel Ali.
On realizing this mistake, the appellants wrote a letter dated 16.12.2008 to the Asstt. Commissioner of Customs and requested him to condone the mistake and allow them to bring the cargo back to India for customs examination and re-stuffing. The Addl. Commissioner of Customs vide order dated 12.3.2009 held the goods liable for confiscation under Sec.113 (g) of the Customs Act and imposed a fine of Rs.50,000/- and penalty of Rs.5 lakhs on the appellants. The Commissioner(Appeals) gave a finding that there was no fault with the order of adjudicating authority. However, as there was no malafide intention of the appellants and consignment being export goods, which have to always meet the deadline and are time bound, the penalty was reduced to Rs.4 lakhs.
The Tribunal while disposing of the appeal held -
"Appellants doing the business of consolidation for their customers - similar consignments - Due to mistake, the customs cleared consignment remained in shed whereas other consignment which was not cleared by the customs was loaded to the vessel - realizing the mistake, the consignment inadvertently stuffed brought back - Since the goods were loaded and taken out of India without permission of the proper officer, the goods are liable for confiscation under s. 113(g) of the Customs Act and consequently penalty is imposable u/s 114 - even if there is no malafide, penalty imposable - However, in the facts and circumstances of the case, penalty reduced to Rs.1,00,000/- - Madras HC decision in Bansal Industries (2006-TIOL-317-HC-MAD-CUS) relied upon."
We reported this order as [2011-TIOL-1406-CESTAT-MUM].
After nearly three years the appellant is before the CESTAT with a Miscellaneous application, aggrieved that although the penalty on the appellants was reduced from Rs.5,00,000/- to Rs.1,00,000/-, the department had not refunded the balance amount of Rs.4,00,000/- paid by them. This is despite the fact that they had addressed letters to the department on 23.08.2011, 7.11.2011, 25.01.2012, 18.06.2012 & 13.03.2013.
On the last date of hearing, upon directions of the Bench the AR had assured to take up the matter with the Commissioner of Customs (Export), NhavaSheva.
When the application was heard recently, the AR "frankly" admitted that in spite of two reminders, no response has been received from the Commissioner.
The applicant submitted that under Rules 40 & 41 of the CESTAT (Procedure) Rules, 1982 the Tribunal can invoke its authority to give effect to the order of the Tribunal passed on 01.08.2011.
The Bench observed -
++ It is indeed most unfortunate that the department has not even cared to reply to any letter of the appellant seeking refund consequent to the order of this Tribunal.
++ Therefore, I am constrained to order that the refund be sanctioned within 45 days of the receipt of this order failing which the Tribunal may have to consider contempt proceedings against the sanctioning authority. Compliance is to be reported on 02.01.2015.
Condescending attitude, a habit - See 2014-TIOL-2263-CESTAT-MUM.
(See 2014-TIOL-2330-CESTAT-MUM)
