VIDYA MAHADIK Vs. COMMISSIONER OF CUSTOMS,

JUDGEMENT

(1.) THIS is an application filed against under Section 129B of the Customs Act praying for recalling of the Order No. CL -277 -87/WZB/2001 dated 2.2.2001 passed by this Tribunal in Appeals Nos. C/1099, 1188/98 - Bom and C/39,40,44,1237/99 -Bom. where under the applicants appeal C/39/99 was dismissed partially.

(2.) FACTS of the matter are that applicant was issued with a show cause notice dt. 2.2.98 proposing to impose penalty under Section 112A of the Customs act. It resulted in the adjudication order dt. 16.10.98 passed by the Commissioner of Customs Gujarat Ahmedabad by Order -n -Original No.5/COMMR/98 APP dt. 16.10.1998 where under the adjudicating authority imposed a penalty of Rs. 1.70 crores. The Tribunal partially allowed this appeal against that order an appeal C -39/99 before the Tribunal was filed. In the adjudicating order confiscated of the contended goods as well s penalties were imposed on other notice mentioned in the show cause notice referred to above however by impugned order the appeal of other two notices were allowed ie. M/s. H. Kumar Gems importer and Ms. Sunita Goel a licence broker. The impugned order however confirmed the imposition of penalty by the adjudicating authority even though it held that the contended goods imported by H. Kumar Gems could not be confiscated.

(3.) SHRI J.C. Patel Ld. Counsel appearing for the applicant invited our attention to paragraph 10 (SIC) said orders as well as paragraph 15 of the Order i.e. pages 20,33, and 34 of the order where the Tribunal has held that the goods could to be confiscated. Having held that the Tribunal it is argued by Shri J.C. Patel, it could not have held that the applicant is liable to penalty under Section 112 of the Customs Act. as the criteria of imposition of penalty as provided under or as enshrined under Section 112 of the Customs Act which was submitted at the time of hearing was never considered in the Order Ld. DR Shri A Chopra adopts the reasoning for the Tribunal.