Page 291 - ELT_15th July 2020_Vol 373_Part 2

2020 ] BIRD RETAIL PVT. LTD. v. COMMISSIONER OF CUSTOMS (IMPORT), NEW DELHI 273

motorcycles (including mopeds) and cycles fitted with an auxiliary motor, with
or without side-cars classifiable under CTH 8711 90 91 were imported.
8. The appellant further submits that Learned Commissioner erred in
denying the alternative submission of the appellant claiming benefit of Notifica-
tion No. 12/2012-Cus., dated 17-3-2012 as per entry 444. Entry 444 of the said
notification is extracted below for ready reference.
1 2 3 4 5 6
444 8714 91 00, 8714 92, All goods oth- 10%
8714 93, 8714 94 00, er than Bicycle
8714 95, 8714 96 00. parts and
8714 99 components
A perusal of packing list will show that the parts (in sets) required to as-
semble Segways classifiable under Chapter Heading 8714 99 90 are fully covered
under Serial No. 444 of Notification No. 12/2012-Cus., dated 17-3-2012 attracting
basic customs duty @ 10%.
It has further been submitted that all the ten bills of entry, after examina-
tion and after several queries from the Customs Appraising Officers, were
cleared against 10 finally assessed bills of entry. All the invoices, packing list etc.
were submitted to the Department and nothing was concealed or suppressed by
the importer. The value of goods and the description of goods declared by the
appellant has not been disputed by the Department. The only dispute relates to
interpretation of clauses of Notification No. 12/2012-Cus., dated 17-3-2012; there-
fore invoking extended period of limitation in respect of 7 B/E dated prior to 11-
1-2015 (beyond two years), ignoring the various submissions of the appellant
discussed in Ground - G of the appeal, is not sustainable.
9. That the Learned Commissioner in the impugned order confiscating
the seized goods and holding other than seized goods liable to confiscation u/s
111(m) of Customs Act, 1962 and imposing penalties u/s 112, is not sustainable.
The appellant also submit that as per Annexure - A of the show cause notice the
differential duty has been demanded in respect of all goods including seized
goods, which were cleared for home consumption against 10 finally assessed
B/E. The said goods are not covered by the definition of imported goods which
definition excludes goods which have been cleared for home consumption. The
duty less paid on such goods can be recovered under Section 28 of the Customs
Act, 1962. In the present case the notice for recovery of differential duty has been
issued under Section 28(4) of the Customs Act, 1962.
10. The penal provisions in respect of duty short paid etc. are contained
in Section 114A of the Customs Act, 1962 which Section 114A contains inter alia a
proviso that where any penalty has been levied under Section 114A, no penalty
shall be levied u/s 112 or Section 114. The said Sections 112 and 114 provide for
penalties consequent to confiscation of goods or holding goods liable to confisca-
tion u/s 111 or 113 of the Act ibid. It is appellant submissions that once demand
of differential duty on disputed goods u/s 28 of the Customs Act has been is-
sued, the penalty under Section 114A can only be imposed. The provisions con-
tained in Sections 111 and 112 cannot be invoked in respect of same goods which
are outside the definition of imported goods under Section 2(25) of the Customs
Act, 1962.
11. That the Learned Commissioner’s impugned order imposing penal-
ty on appellant No. 1 under Sections 114A and 114AA are not acceptable.
EXCISE LAW TIMES  15th July 2020  291