Page 170 - ELT_15th June 2020_VOL 372_Part 6th

848 EXCISE LAW TIMES [ Vol. 372

found in the premises of the appellant by the investigation team. Balance
254 machines could not be found by them in the course of investigation. Ld.
Authority imposed duty of Rs. 6,50,283/- on the lot of machines not in-
stalled and not found. So also the Authority imposed redemption fine of Rs.
20,00,000/- and penalty of Rs. 6,50,283/- for the default of the appellant.
2. Appellant says that they have discharged export obligation. It does not
appeal to common cause as to the reason why 585 machines were imported
when 12 machines were only required for the appellant being installed in
its factory. When no installation was done, that itself raised doubt as to how
the appellant fulfilled the export obligation. Installation of the machinery
being the condition precedent of import, violation thereof is a breach of
condition of the Notification No. 55/2003, dated 1-4-2003. Once there is vio-
lation to the extent indicated above, the gravity is serious. Accordingly,
there is nothing to interfere to the order passed by the Ld. Commissioner
for which appeal is dismissed.”
2. Learned Counsel for the appellant assessee submitted that in the pre-
sent case, parallel penalty proceedings were initiated by D.G.F.T. also and upon
consideration of the facts, where the assessee paid the due Customs Duty on ac-
count of the alleged sale of 254 sewing machines out of the imported lot of 554
machines, the D.G.F.T. authorities have reduced the penalty in question from Rs.
32,00,000/- to Rs. 10,000/-. He further urged that during the course of penalty
proceedings under the Customs Act, this fact was brought to the notice of the
concerned authority that the proceedings of the D.G.F.T., was also pending, but
without waiting for the result thereof, the authorities under the Customs Act im-
posed a fine of Rs. 20,00,000/- and penalty of Rs. 6,50,283/-. He therefore submit-
ted that the assessee may be given liberty to approach the competent authority
under the Customs Act viz., Commissioner of Customs to reconsider the issue of
fine and penalty in view of the subsequent developments which have taken place
with the D.G.F.T. authority.
3. Learned Special Government Pleader (Taxes) Mr. Santhanaraman,
however supported the impugned order passed by the Learned Tribunal.
4. Considering the facts and circumstances of the case, we are of the
view that since two parallel proceedings were drawn against the assessee on sim-
ilar set of facts and one with the D.G.F.T., Department has resulted in favourable
order at the hands of the competent authority under the Foreign Trade (Devel-
opment and Regulation) Act, 1992, those facts and circumstances of the case de-
serve to be taken into account by the competent authority viz., Commissioner of
Customs under the provisions of the Customs Act, 1962.
5. Under these circumstances, we are inclined to direct the Commis-
sioner of Customs to decide the issue of imposition of fine and penalty de novo
uninfluenced by the order passed by the Learned Tribunal, taking into account
the subsequent circumstances which had developed in the case. Therefore, with-
out answering the substantial questions of law raised in the appeal, we dispose
of the present appeal with the aforesaid directions. The appellant-assessee may
file fresh application for waiver/reduction of the fine and penalty before the
Commissioner of Customs, who may consider the same fairly and objectively in
accordance with law. The appeal is disposed of accordingly. No costs.
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